Tivoli inquiry must restore public faith

Yvonne McCalla-Sobers, Guest Columnist

The Government is to be commended for inviting public comment on draft terms of reference (TOR) for the 2013 West Kingston inquiry. Public participation at this stage provides an opportunity to reduce cynicism and mistrust with respect to commissions of inquiry.

A further step might be extending the time allowed for comments, and to enable comments to be delivered orally, as well as in writing. Most important, a clear rationale for setting up the inquiry would help to guide public contribution to the TOR.

Has there been obfuscation by authorities or community residents?

If the aim is to arrive at truth, the TOR would need to be free of assumptions about what happened before and during the Tivoli Gardens operation. The TOR would need to be open-ended rather than pointing (no matter how subtly) towards conclusions with no basis in evidence. To encourage truth-speaking, commissioners would need to be able to offer indemnity against self-incrimination.

A focus on truth would, therefore, limit commissioners' roles to finding facts rather than assigning blame. To function effectively, commissioners would need judicial powers; powers to subpoena witnesses; and access to military and state files.

In addition, commissioners could have the power to choose whether or not to name a perpetrator. Overall, the commission would be mandated to document the truth about such criminal acts or human-rights violations as may have occurred.

STRENGTHENING INSTITUTIONS

Did the security forces act appropriately and in compliance with use-of-force policies? Were there breaches that could be termed war crimes? Under what terms was there involvement of a foreign power in the Tivoli Gardens operation?

Steps taken to strengthen institutions would help allay fears that alleged wrongs could be repeated. Commissioners would, therefore, need to direct their deliberations toward a culture in which some may have been able to break the law with impunity.

The expected outcome would be an assessment of need for change in laws, systems, structures and policies that might have helped some to believe they were untouchable. Most of all, the focus would be on whether due process had been observed, and whether respect was shown for life and liberty.

In addition, commissioners would need to inquire into the extent to which Jamaica's sovereignty was breached. Video footage and documents obtained from the United States indicate that a foreign power provided mortars and drones used in the Tivoli Gardens operation.

REPAIRING DAMAGE AND RESTORING JUSTICE

Were wrongs done? If so, how could the State make amends for these wrongs?

If restorative justice were a goal, commissioners would have powers to provide redress for harm done. They would also have the power to subpoena data from any government ministry or agency, including the army and police. Commissioners' functions would include arbitration, and rulings with respect to compensation would be binding on the Government.

Who was responsible for attacking police stations and killing policepersonnel? Under what circumstances did a soldier lose his life? Were those killed armed combatants, unarmed combatants, or unarmed non-combatants? Was arson and destruction of property accidental, incidental, or deliberate? Who is to be held accountable for crimes alleged to have been committed in May 2010?

No criminal investigation has taken place, despite cries for justice from Tivoli Gardens residents. No witness statements were taken from members of the security forces engaged in the operation. No witness statements were taken from the then minister of defence and security force heads responsible for the operation. No special coroner's inquests took place to determine whether each of the deaths occurred as a result of what civilians or state agents did or failed to do. As a result, the director of public prosecutions had no evidence on which to determine whether or not prosecutions were merited.

LOST EVIDENCE

To recommend that persons be held accountable, commissioners will need proof of criminal behaviour. The difficulty, three years after the events, is that identification parades were never held. Besides, positive identification of state agents was impossible, as they wore masks during the operation.

Moreover, soldiers wear no identifying numbers, and there has been no evidence to suggest that police personnel showed their badge numbers. In addition, crime scenes were not preserved, and forensic data from crime scenes were lost. Ballistics data, if/when finally presented, is likely to be of limited use. The data may show the undeniable - that the weapons were fired. However, what is important is to be able to ascertain whose bullet was the cause of death of which individual, and whether the shooter fired the bullet in self-defence or in execution.

If the TOR are too broad, the commission of inquiry risks fragmenting its efforts by trying to achieve conflicting goals. If the TOR are too narrow, critical questions will be left unanswered.

On the other hand, public consensus on a framework to guide commissioners seems likely to give this exercise a chance at credibility. If the rationale is clear and priorities are identified, expectations may be managed from the start. The public would then be better positioned to assess outcomes from this commission of inquiry.

Yvonne McCalla Sobers is a human-rights campaigner and convener of Families Against State Terrorism. Email feedback to columns@gleanerjm.com and sobersy@yahoo.com.

• Tivoli draft terms of reference

The commission shall enquire into and ascertain:

(a) The reasons and circumstances surrounding the declaration of a state of emergency in Western Kingston and related areas in May 2010;

(b) The conduct of operations by the security forces of Jamaica into Tivoli Gardens and related areas during the state of emergency in May 2010;

(c) What arrangements were made, and what precautions were taken to protect citizens in Tivoli Gardens and other affected areas from unnecessary injury or property damage during the law-enforcement action in the state of emergency;

(d) The circumstances under which civilians, police officers andsoldiers of the Jamaica Defence Force were shot and killed or injured during May 2010 in connection with the security forces seeking to effect the arrest of Christopher 'Dudus' Coke on a provisional warrant for extradition proceedings;

(e) The circumstances under which state officials and law-enforcement officers came under gunfire attacks during May 2010 in incidents connected to the attempts by law-enforcement officers of Jamaica to arrest Christopher 'Dudus' Coke;

(f) The conduct of persons in affected communities, particularly Tivoli Gardens, including the circumstances where embattlements and barriers were unlawfully set up in Tivoli Gardens to restrict ingress and egress of law-enforcement officers or to prevent the arrest of Christopher 'Dudus' Coke;

(g) The circumstances under which, and by whom, several police stations and other state property, including police or military vehicles, were attacked and damaged or destroyed by firebombs, gunfire or other means during or around the period of the state of emergency declared in May 2010;

(h) The circumstances concerning the retrieval of firearms and other munitions in Western Kingston or any related or affected areas during or around the period of the state of emergency declared in May 2010;

(i) The allegations that persons were especially armed to repel any law-enforcement effort to capture the fugitive Christopher 'Dudus' Coke, and if so, by whom;

(j) Whether there was any direct link or indirect communication between the fugitive Christopher 'Dudus' Coke and Jamaican government officials, and if so, by which officials, by what means or for what purpose;

(k) The circumstances under which the fugitive Christopher 'Dudus' Coke managed to elude arrest and the circumstances of his capture;

(l) The circumstances under which, and by whom, private property was damaged or destroyed during or around the period of the state of emergency declared in May 2010;

(m) Whether the rights of any person or persons were violated in any of the affected or related communities by either law-enforcement officers or by anyone else;

(n) The monies and other benefits paid and provided by the State to residents in West Kingston after the events of May 2010 inconnection with those events, the manner in which such monies and other benefits were distributed, and the amounts and recipients of such monies and other benefits.