Saturday, January 31, 2015

Tivoli COE: Clarifying the US Role

"The full extent of U.S. involvement in the operation remains unclear."
                         Mattathias Schwartz, The New Yorker , August 3, 2012

That statement comes from the leading researcher on the role of the USA in the May 2010 military operation in Tivoli Gardens, Jamaica. The Tivoli Commission of Enquiry (COE)  cannot fulfill its mandate if it fails to clarify further the role the USA played in the operation.

Clarification can come from a number of sources. Then Prime Minister & Minister of Defence, Bruce Golding, has given Schwartz a most interesting interview. However, there are certain assertions that the COE may wish to seek clarification. For example:

  • Golding requested the US authorities  to provide "aerial surveillance"that would assist the security forces in managing the operation.Golding claims that he had in mind "satellite images."
The exact nature of the aerial surveillance requested and provided;
The dates and duration of the surveillance aircraft operating in Jamaica's airspace;
The command and reporting station--its staffing, and territorial location (in Jamaica or elsewhere);

  • Golding stated that he had only heard about the video footage captured by the US surveillance when reports by Schwartz were made public.  His administration did not seek the video footage. 
  • The Government of Jamaica ought to make attempts to obtain the video footage would be of some assistance, namely "help to corroborate or challenge whatever comes out of the public defender's report."
  • Such should not be difficult for the Government; "simply send a note verbale to the US government and request that these videos be made public."
The whereabouts of the video footage captured during the surveillance;
Was the video shared with the Jamaican authorities and/ or the Minister of Defence?
Has the Government of Jamaica made any request of the US government for the videos?
  • Golding had no knowledge whether or not US personnel were on the ground in Tivoli Gardens during the operation.
What was the extent of the US personnel involvement, apart from manning the spy plane?
How many US operatives were actually involved and in what capacities?
To whom did these operatives report ?

Thursday, January 29, 2015

Tivoli COE: The Role the US Played

It is an indisputable fact that agencies of the US government payed a role in the the May 2010 incursion into Tivoli Gardens. It is likely that such foreign agencies were  involved prior to the operation and subsequently in the capturing of Christopher "Dudus "Coke.

Any serious investigation into the May 2010 incursion must seek to discern the nature of the role played by foreign security agencies in the Tivoli incursion/siege.

There has been documentation to suggest that then Prime Minister and Minister of Defence sought the assistance of the US Embassy to ascertain the reliability of reports of the extent of the  unfolding carnage. Furthermore, then Minister of National Security was forced to publicly acknowledge the operation of a USA "spy plane" in Jamaica's airspace prior to and during the incursion.

Generally the Government of Jamaica (GOJ) has demonstrated an unseemly recalcitrance in disclosing the nature and extent of the role played by foreign security agencies. No official explanation has been offered.

Mattathias Schwartz, a freelance writer based in the USA, has been doggedly  determined to reveal that role. He has met with very limited success and that information should be shared with the Tivoli COE.
In an article "US Has Role To Play In Tivoli Enquiry" The Gleaner, Thursday, January 29, 2015,
Schwartz makes the case for the Tivoli COE taking steps the ensure his appearance and the relevance of documents in his possession:

  • A US plane, from the Department of Homeland Security, flew over Tivoli Gardens and relayed intelligence to Jamaican forces during the incursion. The plane shot hours of video footage from the operation, which I obtained by filing a Freedom of Information Act request in the United States, which eventually led to a lawsuit. I have hundreds of pages of documents that demonstrate just how closely the US Embassy was monitoring the situation in Tivoli, meeting with senior officials from the Jamaican security forces and positioning US military assets nearby."

More importantly, Schwartz himself acknowledges that the documentation he possesses does not give the full picture of the US involvement:

  • "These materials are small fragments of what the US knows about the Tivoli massacre. The Defense Intelligence Agency, which handles military intelligence for the Department of Defense, told me that it has 15 documents on the Tivoli massacre that are classified - too secret to be released. The Central Intelligence Agency, which has a long and troubled history with Jamaica, confirmed that it possesses documents related to the Tivoli operation. It did not say how many."

Expectedly, Schwartz has faced resistance from the US agencies in his quest to get all information. He has suggested that the GOJ undertakes diplomatic initiatives to obtain the release of all the information in the possession of such agencies:

  •  "Working through the Ministry of Foreign Affairs and Foreign Trade, they should ask the United States to turn over all the material - documents, cables, and video - that it has relating to the investigation of Christopher Coke and the killings that took place in Tivoli Gardens at the end of May 2010. These materials are part of Jamaica's history. Without them, the full story of the massacre will never be told. Both Jamaica and the United States need the best possible understanding of what happened and who was responsible." 

It is likely that some video footage will be presented by the security forces to substantiate the claim as to the nature and extent of the resistance  encountered during the operation. One expects to see footage of armed men traversing the barricaded area with the accompanying audio of gunfire.
That the Tivoli COE will have the benefit of  the surveillance coverage and other documentation---  classified as "top secret" ostensibly for "National Security" interests--- seems rather remote. 
However Mattathis Schwartz could be of considerable enlightenment.

Wednesday, January 28, 2015

The CCJ: Decolonization,Distraction & Democracy

Decolonization is a process by which nation-states reduce their dependency on institutions, structures and processes imposed, copied or inherited from the colonial experience. The ultimate aim is to fashion such to reflect the local realities.

The process is a complex exercise varying in length, character and prone to a number of challenges, distractions, resistance and set-backs. Sometimes initiatives have to be undertaken by visionary leadership moving ahead of the general edification of the populace.
A failure to satisfy expectations invariably gives rise to calls for the return to the “good ole days”.

The Leader of Her Majesty’s Loyal Opposition has described the current debate on replacing the Privy Council (PC) with the Caribbean Court Of Justice (CCJ) as Jamaica’s final appellate court as a “ distraction”. The general reason given is that it shifts the national attention from dealing with the dire economic realities that are presently facing the country.

In a sense Mr. Holness is right; and having made the point he should therefore seek to limit or remove entirely that distraction. The issue then is about getting political consensus on the matter.


 Our colonial masters did not involve the general public in the fashioning of our judicial system.

Furthermore the Privy Council was not entrenched—deeply or otherwise---- in the Constitution of Jamaica. Hence a simple majority in both Houses of Parliament is all that is needed for its removal.

The rationale informing that arrangement was that the PC as Jamaica’s final appellate court was to be a temporary arrangement until the country developed the requisite skill, experience, confidence and trust to have its own final appellate court.
At present the local judicial system is beset by a number of problems, due directly to insufficient budgetary allocations since political independence—if not before.

Jamaica was among the founding fathers of Caricom and had been involved in the establishment of the CCJ. It has duly made its financial contribution; which is a very significant sum (some US$23million). However, Jamaica has refused to make the necessary constitutional amendment to facilitate its accessing the appellate jurisdiction of the CCJ

 Both political parties seem to agree that now is an appropriate time to de-link the PC. The contention seems to be centered on its replacement and the manner in which such replacement should be entrenched in our Constitution.
The PNP is of the view that the CCJ should be that replacement and should be “ordinarily” enshrined requiring a 2/3rds majority of both Houses of Parliament.
The JLP present position is that that replacement should be a local Jamaican Court of Justice (JCJ) and that the public should consulted via a referendum. So the JLP is holding steadfastly to its position by blocking the move in the Upper House.

Democratic Overtures.

There is the attractive argument that the electorate should be consulted on matters of fundamental importance involving serious constitutional change. That is a central characteristic of any democracy.
The counter arguments: it is dangerous to “politicize” judicial matters, that the referendum would be one dominated by non-judicial considerations; a referendum would involve the expenditure of substantial sums; a referendum is not constitutionally demanded for such a change and to have one would be setting a dangerous precedent; the Commonwealth countries which have de-linked the PC have done so without a referendum.


There can be no serious objection to any nation- state aspiring to have its own judicial system located within its territorial boundaries.  However, the manifestation of that aspiration has to be based on the requisite infrastructure being in place and its general public having trust and confidence in the supporting institutions.

Both parties will agree that Jamaica is not yet at that stage. But this should not prevent us from moving in the general direction by de-linking from the colonial masters and placing reliance on others with a shared colonial experience and similar national aspirations.

There can be no harm in replacing the PC with the CCJ and at some future period assessing the performance of such a court. In the meanwhile we could make a serious attempt to address the challenges and thereby engender public confidence and trust in our local judicial system.

Indeed the rules governing the CCJ recognize that members may wish to withdraw from its jurisdiction and mandates a 3-year notice. At some point in time the Government of Jamaica may find it prudent to resort to that facility.

The de-linking of the PC, its replacement with the CCJ and eventually by the JCJ can be viewed as necessary steps in the process of decolonization. Care must be taken to avoid distorting the distractions thereby delaying unnecessarily the process of our decolonization. Public awareness of constitutional matters is a formidable undertaking. Some limited amount of democratization of the process can be achieved by the full support of the peoples’ representatives—elected and selected. The precedent was set in the Charter of Rights.

Monday, January 26, 2015

Tivoli COE: Is the Commission acting ultra vires?

On the publication of the Public Defenders Interim Report that the recommended a public commission of enquiry, we have argued that its focus should be  state-centric. As such it should not seek to replicate the work undertaken by the Office of the Public Defender ( mainly compensation) ; neither should it be concerned with the criminal aspect ( primarily because the unavailability of the forensics and that matters dealing with criminal culpability is the remit of the Director of Public Prosecutions ).

 In a Gleaner interview published Tuesday, May 14, 2013  : "Attorney say yes to Tivoli enquiry" (carried on the front page) I was "strongly recommending" that the proposed commission "should consider the granting of immunity to persons summoned to testify in order to get to the truth"
Not to do so would run the distinct possibility that the principal decision-makers and state operatives  being instructed by their attorneys to guard against self-incrimination.

The GOJ invited submissions on the Terms of Reference (TOR) ; after the appropriate considerations  the operative ones were promulgated.They were omnibus in scope and cumbersome in nature. A worrisome feature was the capacity of the named commissioners to undertake the tasks involved. Indeed we had suggested that there was need for a commissioner with some expertise in military operations. Others argued the case for unbiased military expertise.

 The  commissioners were duly appointed.  Curiously, they were sworn- in not by the Governor General himself but a former Chief Justice and now Chairman, Public Services Commission in a hotel room in Kingston, (not at Kings House) for some unpublished reason. Neither the detailed budget or the legality of the TOR were questioned; although there were outcries that it was going to be a glorious waste of time and a soap opera like the Manatt Enquiry.

Gordon Robinson, an attorney-at -law, in a column entitled " Enquiry Botched From Beginning" published in The Gleaner, Sunday, January 25, 2015 has questioned the legality of the TOR.
Below are excerpts:

 Statutory basis of a commission of enquiry:

"Section 2 of the COMMISSIONS OF ENQUIRY ACT gives the power to issue a commission of enquiry to the governor general 'whenever he shall deem it advisable' for the purposes of enquiring into 'the conduct or management of any department of the public service, or of any public or local institution, or the conduct of any public or local officers of this island, or of any parish, or district thereof, or into any matter in which an enquiry would, in the opinion of the governor general, be for the public welfare.'

Matters of compensation and criminal culpability:

"Jamaican statutory authorities' jurisdictions aren't elastic. No enquiry's remit will stretch so far as to permit it to hold any soldier/policeman accountable for injury to any citizen or to assess the "adequacy" or otherwise of compensation. That's also for the courts.
Because enquiries are limited to investigating actions of government departments to see if processes were breached or are flawed, the Tivoli enquiry should be focusing on the security forces' conduct. Why'd they 'invade' Tivoli? Why not adopt a siege strategy? Who gave the order to invade? Was it in accordance with proper military/police methods?"

Treatment of Tivoli residents:

"The thing about this enquiry isn't so much the hourly rates as the infernal waste of hours bullying Tivoli residents. Why're we asking residents any questions? Why are they priority witnesses? The commission can't find anybody liable to any of them nor assess adequacy of compensation. Whoever has promised Tivolites this enquiry is operated on the 'gimme-a-money' principle needs to correct that impression immediately."

Robinson has agued that some of the TOR are "obscene" and the Commissioners are conducting "ultra vires investigations essentially usurping the Supreme Courts jurisdiction".

Tuesday, January 20, 2015

Tivoli COE; Justifying $335m Budget

The Minister of Justice, Senator Mark Golding has sought to justify the multi- million dollar budget provided for the Tivoli Commission of Enquiry.We renew our call for the Ministry of Finance and/or the Ministry of Justice to publish the full details of the budget for this enquiry,

We intend to summarise some of the arguments advanced and to question the rationale informing those considerations:

  • The GOJ was intent on getting Commissioners and legal counsel of the highest integrity, professional competence and experience.  That  came at considerable costs, even after some amount of negotiation.
This presumes that they are no Jamaicans being held in such high regard with the requisite professional competence and experience to chair the Commission. Consequently the GOJ had to look elsewhere to find a chairman who, apart from being suitably equipped, would not be perceived as being "tainted" by local partisan politics.

We disagree fundamentally with that approach. 

In our post : "Some Preliminary Concerns" we stated our objections to a foreigner, albeit a Bajan, being given the chair  because a) no Jamaican could have been selected for such a position in Barbados -- even if they could get beyond the airport; and b) there are numerous Jamaicans who are more than suited for such a position.
Even more importantly it speaks to the calibre and integrity of our judiciary, especially those who sit in our Court of Appeal.
Perhaps our decolonisation has not yet reached the stage that bestowed titles, especially a knighthood, have little or no relevance. ( Sir Paul would sound quite impressive, even Pope-like).

But what does that say about the other two commissioners  ? Are they appointed for their professional competencies or for some type of "balance" academic/gender?
Frankly, they all "eat a good food" for a total of three months work. Cabinet Ministers must be feeling jealous. I too wanted to be a Commissioner--- need such nutrition ( multi- millions as opposed to multi-vitamins!).

  • The total cost will outstrip that for the previous commissions of enquiry primarily due to the amount of witness to be called.  Both the Chairman and the Minister have acknowledged this fact. Moreover, this Tivoli COE is greater in scope and participation than any other.
Behind this reasoning is the failure of those crafting the Terms of Reference to consider the costs and purpose of having residents of Tivoli Gardens relive the trauma undergone and to be cross-examined as to the inconsistencies between the various statements they have given to those state agencies who were investigating the loss/damage claims.
Perhaps the experience of recounting the experience live and direct on television and such being re-broadcast numerous times will ensure hem a place in our political archives. That must be worth something.

Apart from the wide participation is the capacity of the Commission to deal with all the various aspects of the military incursion. We have argued that the COE as currently composed is ill- equipped to handle some critical issues, notably compensation .

  •  There is a specified cap as to the maximum amount each operative will be allowed; even though there exist different categories of remuneration depending on the type of work involved. So there is a different hourly rate for preparatory work, another actual hearings, post hearing, report writing etc.
The stated objective is to state the maximum payable under the specific contractual arrangements. It is the intent that if they exceed the stated hours, they cannot claim sums in excess of the stated cap.In so doing the maximum costs would have been fixed.

We would wish to question the effectiveness of such a cap.

The contract is constructed based on the stated duration of a total of 3-months ( some 64 days), Now if the Commission exceeds that period , are they not entitled o be remunerated? Is the GOJ expecting all parties so contracted to "hug up" the charges for the extra work? Do the contractual arrangements come to an end at midnight of day 64?

  • The money allocated to the Tivoli COE is not necessarily available to be used in other national projects which are currently suffering from financial constraints, It has been pointed out that international bodies have allocated grants, ostensibly to facilitate the victims in bringing about "closure" and not feeling that this is a waste of time. (The UNDP has assisted with the forensics and has made a grant of $100,000 US)
The Minister needs to itemize the amount of specific grants that have been forthcoming and state exactly how much of our taxpayers' money is being allocated to the $335 million exercise.
But even if the GOJ is in receipt of specific grants, there is a Jamaican component. Could this portion be allocated to more pressing national needs?

Tivoli COE: Revisit Compensation Focus

  • Is there a budget for the Tivoli Commission of Enquiry ? 
  • If there is one somewhere could the Ministry of Justice and/or the Ministry of Finance  seek to get it published ?

From the public utterances from the Minister of Justice there have been a number of "drafts" ranging from $250 M--$300M.
Those drafts are presumably based on the Enquiry lasting a total of 3 months-- more accurately 64 days. Note, it is not successive months or weeks.

The Chairman at the very start made it clear that given the amount of witnesses to be called it is very likely that the specified time period will be exceeded. This reasoning has been uttered by the Minister, Hence it is very likely that the $300 million  budgetary allocation will have to be increased, if the COE proceeds, unchecked, along the path taken.

Being faithful to its Terms of Reference, the COE has embarked on a path that results in the calling of victims of the May Tivoli incursion to tell their stories , indicate their losses/ damage and being questioned in regards to inconsistencies in their various accounts.

The matter of the number of witnesses to be called has to be revisited. The current path has some 75 additional witnesses left to be called,. The COE  could follow the precent of the Finsac Equiry: exceeding the time and budget with the Government indicating that it will not allocate the requisite funds to complete that report.

It is beyond debate that that vast majority of civilian witnesses  are interested if some financial assistance to further facilitate them building back their lives. Undoubtedly some of the damage/loss of property would have been occasioned by the security forces. But some were not.

The Government of Jamaica has to ensure that taxpayers' money is used to compensate damage/ loss caused by agents of the state.


 Some of the witness have already received compensation from the state but are now being asked if such was "adequate" and to indicate the sums in their opinion which would be sufficient.
Predictably,  the state compensation has been deemed inadequate; substantial sums have been indicated as being satisfactory, in light of all the circumstance.

The Chairman and Commissioners duly record and when asked when it is likely that the amounts indicated would be forthcoming, the Chairman's response is the the Commissioners will make a recommendation.

The following are some pertinent issues:

  • Is the COE  equipped to deal with the matter of compensation? Such claims need to be thoroughly investigated be competent persons in a process akin to the investigation processes undertaken by insurance companies in settling claims. 
  • Furthermore, there is a danger of giving media coverage to the various claims in that the claimants are likely to be targeted for a "cut" whenever settlement is made.
  • Indeed on what verifiable basis will the COE  be able to make any recommendation that could result in compensation being paid out within a reasonable period of time?
  • Will the victims having recounted their horrors and losses have the reasonable expectation that their appearance before the COE  will assist  their quest for "adequate" compensation?

 There is the clear and present danger that there will be renewed and growing frustration that having given statements during the investigations carried out under the aegis of the Ministry of Labour and Social Security and the Office of the Public Defender and now the Tivoli Commission of Enquiry. that no money will be paid to them.
Hence the view that  it is a waste of their time since "nutten a go come out a dis" . Moreover the money being spent on the Enquiry could have been better spent on directly assisting the victims and/or addressing national deficiencies in the health sector.

A Way Forward:

It may not be practical to abort the existing contractual arrangement with the main actors in the Tivoli COE. However, there may be some scope for amending the Terms of Reference and/or revisiting the modus operandi of the commission.

Care needs to be taken that the preparatory work has been carried out to facilitate the efficient utilization of hearing time . For example, the Ballistic Reports. the accompanying forensics,the JDF Report, the JCF Report. The state actors who played central roles need to be identified, legally required to submit statement and  required to make an appearance. Critical documentation must be identified and submitted to the COE.

Since the per hour costs are deemed "obscene", then there is an obligation to manage the time efficiently. The Tivoli COE is not equipped to deal with all the issues consequent on the May 2010 incursion.
It is certainly not equipped to deal with the issue of compensation. It seems that a substantially more affordable and appropriately equipped forum could be found to deal with the issue of compensation.

Monday, January 19, 2015

Tivoli COE: McKenzie Substantiates Paid Compensation Claim

Desmond McKenzie, MP Western Kingston has provided documentary support for his claim that the GOJ spent $100 million  in settlement of compensation claims by residents of Tivoli Gardens consequent on the military on May 23, 2010 incursion . Mckenzie had disagreed vehemently with Minster of Justice, Mark Golding's assertion that the amount was approximately $1billion.

It is a Statement to the Houses of Parliament by the Honourable Derrick Kellier, Minister of Labour and Social Security. Tuesday, September 17,2013 entitled "Assistance To Residents Of West Kingston Consequent On Military Incursion on May 23, 2013(sic)

Major Points:

  • The investigations were carried out by the staff of the Ministry, Social Development Commission and Poor Relief Department.
  • Some 2520 families were assisted with grants ranging from $15,000-$250,000 based on the degree of damages/losses sustained. This amounted to $71.89M.
  • Some 181 registered vendors of sections of Coronation Market which were destroyed by fire received grants ranging from $25,000-$150,000. This totaled $13M.
  • The families of 47 persons who died during the operation were assisted to meet the cost of funerals. This was paid directly to the respective funeral homes and totaled $4.477M 

Of note , the following is stated in the concluding summary:

" Mr, Speaker, the Ministry distributed approximately $90M to 2748 persons. The administrative cost associated with investigation, distribution, transportation and meals approximated to another $10M.

The Ministry of Finance and Planning provided all the necessary funding--- approximately $100M--- to accommodate the expenditures and this was accounted for in the 2010/2011 Supplementary Estimates of Expenditures."

Tivoli COE: Publish Compensation Details

 The recent outpouring of consternation about the financial  costs being incurred by the Tivoli Commission Of Enquiry is understandable in the context of competing national priorities. These  are being neglected, in part, due to financial constraints imposed upon and by the Ministry of Finance in conjunction with the International monetary Fund (IMF).

The Minister Of Justice, Senator Mark Golding, has stated on radio ("This Morning" on Nationwide) that "close to a $1 billion" has already been spent, primarily by the Ministry Of Labour & Social Security, in the aftermath of the Tivoli incursion/siege.
Member of Parliament, Desmond McKenzie, has refuted that amount ; countering that the "sum of $100 million" was the amount tabled in a report to the Parliament by the Minister of Labour & Social Security.

Now there is a world of difference between the amounts being stated as having been spent on Tivoli Gardens residents by the JLP Administration. More importantly, the amount spent is taxpayers' money.

Clearly whatever is the amount that was expended it is clear that;
 (a) it is deemed insufficient compensation for the damage caused by agents of the state; and
 (b) that the PNP Administration is not keen to devote additional sums to a JLP garrison, for actions              undertaken during a JLP Administration, ostensibly aimed at apprehending a JLP don.

The argument has been made that money being spent for the Tivoli COE could have been better spent on compensating the victims, repairing the damage done to physical structure and providing economic opportunities in Tivoli Gardens.

Additionally, there is also the view that, given the national financial constraints,  little or nothing will be left for the victims after the Tivoli COE has been completed. It is therefore critical that the budget for the Tivoli Commission of Enquiry be finalised and published.

The Government of Jamaica (GOJ) has an obligation to publish the complete details of the sums paid out in the aftermath of the Tivoli incursion. The taxpayers have a right to know how the money was allocated, the claims that were made, the proportion which were settled, and the details of the damage recognised as being occasioned by the security forces.