Monday, April 18, 2016

Tivoli COE: Impractical timelines

The Tivoli COE was mandated to have its public hearings conducted within a 3-month time period. The Commissioners exceeded this time span and did so without seeking the appropriate extension from the Governor- General.

Two concerns come readily to mind:

  •  Having ignored the protocol, what is the legal status of the public hearings conducted after the stipulated time span had expired? and 
  • What were the circumstances that accounted for the overrun and where such unforeseen and/or unavoidable ?

i) We are not in a position to state definitively if the overrun has altered the legal status of the public hearings conducted after the stipulated 3-month. Having not sought or obtained the extension, then it would seem that an argument could be made that the public hearings conducted after the expiry of the mandate would have no legal standing. Hence, the Commissioners would be barred from taking into their consideration any evidence given after the expired date. Consequently any adverse findings based on evidence deduced after the expiry date would have no legal effect. In other words the Tivoli COE acted ultra vires for the subsequent period.
The ramifications of such a position would be catastrophic to say the least.

ii) The only official reasons given for the Tivoli COE non- compliance with its mandate can be found in the Chairman’s closing remarks. However, his reasoning was more instructive:

“Because our Instrument of Appointment referred to three months for the public hearings there seems to be a view that we could have done this enquiry in three consecutive months.  I want to disabuse the public's mind of the appropriateness - just one minute please, I wish to disabuse the public's mind that these enquiries can be satisfactorily conducted in that manner.”

Note the admission that the Instrument of Appointment stipulated three months. The Chairman interpreted that to mean 90 non-consecutive working days. And has congratulated himself (along with others) on such an achievement:

“It has been, I speak for all three of us of course, in these remarks, it has been intellectually challenging and at the same time highly rewarding if at times emotionally draining, but we have completed within the 90 days. Today is the 90th day. I feel very proud of that myself because the Instrument which appointed us from His Excellency the Governor General asked us to complete this hearing within 90 days.”  

Again the Governor General stipulated 3 months; and not 90 non-consecutive working days. This is critical for using the Chairman’s interpretation, the Tivoli COE could have lasted, not 14 months but considerably longer.( see our Tivoli COE: 3-month enquiry lasts 14 months)

After itemizing a number of reasons why the Tivoli COE could not be conducted within 3 calendar months or even within 90 consecutive working days, the Chairman revealed that the stipulated time frame was impractical from the very beginning:

“I am just saying that it is really an impractical solution to expect that 
these things could be done in 90 days on the troth.”

 We have no reason to question the reasons advanced by the Chairman. We are left to wonder if the much-experienced Chairman could not have raised this issue with the appropriate authourities so that the Instrument of Appointment would have accorded with the reality.

But having proffered his unusual ( albeit expedient) interpretation, the Chairman then proceeded to remind his audience of the exact reference for the submission of the report:

"And I further direct you to report to me in writing within two months after concluding the Enquiry the result of such enquiry and to furnish to me a full and faithful report and recommendations of the proceedings." 

 However, the Chairman has made it abundantly clear that this two-month deadline is “an extremely tall order”.

“But however, it turns out we are hoping if we cannot make the 20th of April, no longer than two weeks thereafter.  So by the middle of May, I hope that we will be in a position, I hope all things being equal, no unforeseen circumstances to have the report ready.”

We wish to re-emphasize the point that it would have been tidier if the Chairman had had some input at the earliest time so that the timelines stipulated would have accorded with the reality. That not being the case, then the Chairman should have adopted the appropriate protocol and sought an extension.

We await April 20,2016--- with reduced expectation that the report could be delivered sometime in mid-May 2016.

Monday, April 4, 2016

Tivoli COE: Source(s) of Dudus’ Tip off

The Terms Of Reference Of The West Kingston Commission of Enquiry mandates the enquiry into inter alia:

“(n) whether there was any direct or indirect communication between the fugitive 
Christopher “Dudus” Coke, and any Jamaican Government Official (or Officials) or 
any agent thereof, during the period between when the Request for Extradition was 
first communicated to the Jamaican Government or any of its agents or officials 
and when the fugitive Christopher “Dudus” Coke was arrested;  and if so, by which 
Officials and or agents thereof, the nature of any or all such communications, by 
what means and for what purposes.”

No evidence has been adduced before the COE from which the inference could be made that any official of the Government of Jamaica directly or indirectly contacted Christopher “Dudus” Coke regarding the imminent request for his extradition. (See our Tivoli COE: Who tipped off Dudus?)

Both the then Minister of National Security, Dwight Nelson and the then Prime Minister have vigourously denied that:
i) they made contact with Coke or instructed anyone to do so on their behalf ;
ii) they were aware of anyone making such contact on August 24,2009.

There is unchallenged evidence that Coke was tipped off after the Heads of the Security Forces made the Minister of National Security aware of the impending request and the Minister had telephoned the Prime Minister to arrange a meeting.

The evidence before the Simmons chaired COE concerning the tip-off emanated from the CDS Major General Stewart Saunders:

“Having briefed the Prime Minister on the 24th of August at Vale Royal, I left Vale Royal, the Commissioner of Police left, both of us left at the same time and I would say that roughly within probably five to ten minutes of me leaving Vale Royal, I received information stating that Mr. Coke had fled his residence in Belvedere, upper St. Andrew in a rather hurried manner and drove straight into Tivoli Gardens. The reason the information was so correct is based upon the fact that, as I stated before at this Commission, Mr. Coke had been under surveillance for perhaps two weeks prior to that date.”

Under cross- examination the CDS revealed that he obtained the information when he had arrived at Up Park Camp –the journey from Vale Royal taking “ roughly five minutes or so”. Furthermore, the Major General agreed that Coke would have already reached Tivoli Gardens when the information was relayed.

More importantly, the CDS estimated that it would have take Coke “about ten/fifteen minutes” to complete the journey from his residence to his safe haven in Tivoli Gardens. It is reasonable to infer that Coke must have been tipped off before the Heads of the Security Forces had left Vale Royal.

The duration of the briefing of the Prime Minister by the Heads of the Security Forces seems immaterial in terms of the tip off. However, it is worthy of note that the CDS estimated it to be “ about fifteen or twenty minutes”; whereas the Prime Minster stated that it lasted” no more than five minutes”.

The Commission can only consider the evidence presented. There is other pertinent information from then Commissioner of Police, Rear Admiral Hardley Lewin regarding the timing of the tip off.  (See our Tivoli COE: The Commissioner of Police Informs)
Major General Stewart Saunders has not informed the COE of whether Coke surveillance included electronic monitoring.
It seems reasonable to consider if, in this age of modern technology, some attempt could have been made to ascertain at the very lest the geographic location of the tip off call.
If indeed the Military Intelligence Unit has such information, then what purpose was being served by the Tivoli COE not exploring fully this aspect?
No confidential documents ( of copies thereof) were reported to be found by the security forces in Mr. Coke’s offices in Java, Tivoli Gardens, during the May 2010 operations.

Saturday, April 2, 2016

Tivoli COE: The Capture of Christopher “Dudus” Coke

Christopher “Dudus” Coke was captured on June 22, 2010. The public was given scarcely any details on the operation. The published photograph of Coke wearing a female wig—the camouflage Coke was alleged to having been wearing in the company of Reverend Al Miller,drew substantial public (derisive?) commentary.

The testimony of CDS, Major General Stewart Saunders before the Western Kingston Commission of Enquiry on June 23, 2015 gives some insight into the capture:
  • Intelligence reports had placed Coke in St Ann and a number of operations had been launched to capture him. The reports were unable to verify his exact location.
  • On June 22,2010 Coke left St. Ann. Intelligence resources picked up Coke somewhere in the region of Ewarton, Bog Walk entering the Gorge.
  • Reports also indicated that Coke was in the company of Rev. Al Miller and that he was on his way to the US Embassy in Kingston.
Interestingly, it was the Chairman himself who examined the Major General on the circumstances surrounding the capture of Coke. The following excerpts are telling:

Commissioner: Am I getting the sense that on the 22nd of June Coke was probably about to surrender?
Major General Saunders: I don’t know if I could accept that as a fact. It is highly probable that he was about to do that.
Commissioner: You are saying that there were reports that he was on his way to the Embassy with Reverend Miller?
Major General Saunders: Yes, I also had reports previously that he wanted an opportunity to hand himself over to the JDF as opposed to the police. So there is no way that I could have verified those set of things.

Unresolved Issues:

i) Reverend Merrick “Al” Miller is currently being tried on charges arising out of the circumstances of the capture.The trial proceedings have not given any further insights into the circumstances surrounding the capture of Coke. Miller has always maintained that he had made the Police High Command well- aware his mission and subsequent actions.COP Ellington has consistently refuted this claim.

ii) The Tivoli COE did not to deal with the numerous questions surrounding the exact location in St Ann that Coke sought refuge. Indeed the probability of Coke hiding out at the Government house in St. Ann was never explored.

iii) It seems that in any attempt to unearth the truth about the circumstances leading to the capture of Coke the evidence of Reverend Miller would have been critical. Steps ought to have been taken to facilitate such testimony.

Update: Rev. Dr Merrick "Al" Miller found guilty.

Friday, April 1, 2016

Tivoli COE: Disjointed Police – Military Operations?

From the evidence adduced at the Western Kingston Commission of Enquiry there was no joint Police-Military operation in May 2010 with the prime purpose of executing the arrest warrant for Christopher “Dudus” Coke.

Officially, the warrant for the arrest of Coke was the remit of the Jamaica Constabulary Force (JCF). However, given the very limited capabilities of the JCF, the assistance of the Jamaica Defence (JDF) was critical to any such operation, even more so given the influence and resources of the Don in question.

So in all operations even a token presence of a member of the JCF was mandatory outside of a declared state of emergency. In the latter case the army is given overwhelming police powers, chief among which is the power to arrest. Hence under a declared state of emergency army units need not have a member of the JCF present.

It is against this background that the operation to capture Coke must be assessed.

The surveillance party was composed of resources from the JDF and JCF. That had to be officially the case; even though it is likely that the Military Intelligence Unit and a specially trained combat team would have been the driving force.

There were two separate operational plans. The military had its “Operation Garden Parish” whilst the police had its “ Operation KeyWest”. The existence of two separate plans is not unusual in security operations.
What is startling is that the top brass of each was unaware of the other plan: DCP Glenmore Hinds --who was in charge of the JCF Operations portfolio -- was unaware of Operation Garden Parish. Major General Stewart Saunders never saw the Operational Order (ie. Operation KeyWest) before the date of his testimony before the Commission—23 June 2015.

The sharing of information was abysmal.
Major General Saunders took sole responsibility for the decision to use mortars during the Tivoli operation of May 2010. Commission of Police, Owen Ellington, knew nothing about the decision or its implementation.
DCP Glemore Hinds was not made aware of the intelligence the military had during the operation of the route Coke had used to escape on May 24,2010. DCP Hinds was a part of the “Gold Command”.

 Indeed, so glaring was this deficiency that the Commission Chairman, Sir David Simmons, was moved to declare:
              “ I find it hard to accept that if there was intelligence coming through that Coke had got away           and the route through which he had got away, that this was not shared with you as head of operation. I cannot--- I find it hard to accept. I just say that.”

The capture of Coke was also heralded as a police operation.There is no dispute that the military was critical during the surveillance operation, monitoring and the location of the eventual capture.