Tuesday, January 20, 2015

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.

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