Full text of Tivoli Report

APOLOGIA

The Public Defender acknowledges the relentless criticism by all who have rightly expressed impatience over the delivery of this Interim Report — a “special” and extraordinary report to Parliament. Their concern that it has contributed to the delay of justice, an injustice in itself, does have merit and is cause for much regret.

In the meantime and for months, frustrated, caustic critics exercising the freedom of expression, have fulminated in anger and indignation over the delay. That freedom is one of the various fundamental rights of the citizen which the Public Defender is enjoined to protect and enforce. He must therefore be and, has been especially tolerant of adverse commentary, in this case, by “outraged” would-be opinion-makers who, have launched virulent verbal assaults on him. These attacks relate to the handling of investigations concerning one of the monumental events in Jamaica’s torturous history (the State of Emergency declared in May, 2010 ) as well as the delivery of this review.

The delay has generated a great furore. Utterances, at times vitriolic; rarely balanced, fair and informed, were grist to the mill of gleeful media, hungry for and thirsting after something they call “news”. On occasion, the diatribe has stooped to unbecoming and

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highly offensive “anal” ribaldry, spewed by what in times past was respectfully referred to as “the old lady of Harbour Street” - the Daily Gleaner.

There have even been calls for the incumbent’s resignation; for him to “pack his bags and go !” And if he does not, to hound him out of office.

Quite remarkably, those calling publicly for the resignation, included Mr. Delroy Chuck, Q.C., M.P., leader of Opposition Business in the House of Representatives, a former Speaker of the House and erstwhile Chairman of the Commission established by the Public Defender (Interim) Act, S.11(2), of which he remains a member. He spoke out strongly but in egregious disregard of relevant provisions of that statute as well as binding protocols. And Mr. Desmond McKenzie, M. P. for West Kingston, has accused the Public Defender of “deceiving the people of Jamaica, particularly the residents of Tivoli Gardens”, who, are amongst his constituents. (See pp. 198 – 204, post.)

But are the faultfinders all well-intentioned ?. Are their real motives honourable, or sinister and deplorable ?. Time will tell.

Truth be told, so many of the critics know too little about way too much. They care to understand even less. There are ways in which they have done more harm than good. And yet, others must actually mean well.

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That being so and, with the benefit of these contents, perhaps they will come to realize how often they have missed the mark: that so many of their laudable designs and righteous expectations can or will only be met through a Commission of Enquiry long ago recommended by the Public Defender; not directly by him. For the exigent circumstances of the case impose an inescapable procedural obligation on the Government, consistent with the requirements of democratic governance, to cause a judicial investigation to be conducted.

The Public Defender is chagrined by ambitious projections made but not met, of dates by which this Interim Report would have been submitted to the Parliament. Persistently, exuberant and energetic copycat news media and commentators have labelled them “self-imposed deadlines”, provoking more scathing criticism still.

Having regard to the scope of this Interim Report, it may also appear that a certain intimation given by the Public Defender to former Prime Minister, the Honourable Bruce Golding, regarding the delivery of reports to Parliament was, in all the circumstances, also ambitious. That intimation was given in August, 2010, barely three (3) months after investigations had begun: at a time when formidable challenges occasioned by fast-

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moving events were then only just beginning to manifest themselves.

It is conceded however, that earlier “progress” reports might well have been submitted to the Parliament; although the October, 2010, appointment of the Manatt commission of enquiry, so called, created fresh exigencies which tended to sideline many decisions.

It should be noted that the Public Defender was not consulted over appointment of the Manatt commission. That appointment appears to have been dictated by certain political imperatives or dynamics, from which the Public Defender distances himself. As that commission’s terms of reference show, it was mandated to enquire into matters not sufficiently material to activities of the State Security Forces and gunmen, as alleged, during the State of Emergency. It is those activities with which the relevant investigations are mainly concerned.

But perhaps the Parliament, taking all cogent reasons for the delay under advisement, will allow that the passage of time has at least served to ensure that the Public Defender does not miss the wood for the trees. In fact, perhaps time has afforded a more acute appreciation of matters.

Be all that as it may, the delay is mainly a function of overload with which a proactive Public Defender endeavours to cope, even

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as he addresses other matters of moment or public interest, as they arise.

Thus it deserves to be better known as well, that concurrently, the Public Defender at all material times has had to investigate or otherwise deal with varied unrelated singular complaints made by more than three thousand (3,000) other anxious citizens. Settlement of those grievances was always no less impatient of delay. For the greater part, those complainants understand that some priority has had to be accorded to the momentous subject matter of this Report. Their continuing forbearance is greatly appreciated. Interestingly, many of the remainder consider that that priority should have been accorded to their individual complaints !

The Public Defender seeks the continued patience of the ‘Tivoli’ complainants whilst striving to address their own grievances. They are assured that if the Public Defender concludes that their claims have merit, every effort will be made to secure appropriate redress. As soon as practicable therefore, appropriate recommendations will be made to the Government for settlement of all meritorious claims; firstly, those not related to alleged extra-judicial killings. Regarding the latter, reparations will have to abide the final determination of any relevant criminal proceedings. However, complainants aggrieved by those killings are assured that the

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necessary procedural steps will be taken to ensure that all probable causes of action are preserved.

Frankly, at the outset of the 2010 State of Emergency investigations, it was not imagined that this Interim Report would have been as definitive a document which some imagine it ought to be. The thinking was that, (as for example in the case of the recent ‘Armadale’ enquiry,) the Public Defender, (essentially an investigator,) would, ideally, have made the evidence ferreted available for judicial consideration.

Doing so would have entailed no derogation from oath, let alone an investigator’s abdication or dereliction of duty. It would have been a pragmatic exercise of discretion. After all, a Commission of Enquiry, by comparison, could be expected to be more august and authoritative; be better funded and equipped. Besides, it was at all times self evident that any Government should do the right thing.

That original thinking has now been overtaken by events.

The present Government seems hamstrung by the delay. But

tooling of the Government Forensic Science Laboratory to ensure that it is equipped with the necessary facilities for completing the crucial ballistic examination of firearms, spent ammunition and bullet casings, is an absolutely indispensable pre-condition for completion of the investigations. Thereafter, it

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would fall to the Government to determine its acceptance or rejection of the commission of enquiry recommendation.

In the meantime also, events have inspired expectancies which would make this Report the raison d’e?tre of all things; the fulcrum of so many decisions yet to be made. If needs be therefore, so be it.

The Public Defender sincerely thanks those sober persons genuinely concerned at the delay but who are neither blinkered nor blinded by excessive zeal. Amid the raging furore, they have kindly elected to hold their peace. They are not at all unmindful of the rights alleged to have been abused during the State of Emergency. But they also respect the rights of those persons who have been or, may yet be accused of related crimes, or other forms of misconduct. (Like the freedom of expression relished by so many critics, these rights enjoy the equal protection of fundamental law: the Constitution.) Moreover, unlike a lumpen lot, those prepared to “wait and see” appreciate that the Public Defender is embarrassed by various constraints, some of them not unfamiliar; that there is no want of will, wit or industry; that although he urgently needs more investigative and other diligent, conscientious and tenacious personnel (an aspect which, lamentably, too few care about,) the delay is also a function of the huge and ever growing volume of grievances dealt with routinely.

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Nevertheless, the Public Defender proffers profound apologies to the Speaker of the House of Representatives and to the Parliament. He couples with those sentiments, the Resident Representative of the United Nations Development Programme (UNDP) in Jamaica and the international donor community. The assistance co- ordinated by the UNDP concerning these investigations has been absolutely invaluable. The Public Defender is eternally grateful to them and covets their continued support. So too should our country.

Finally, the Public Defender thanks the officers and agents and all others who have assisted in these investigations and in the compilation of this Interim Report. They include Ms. Florizelle O’Connor, former Co-ordinator of the Jamaica Council for Human Rights, Mr. Boris Ormsby, Information Technology Specialist and two (2) highly proficient proof-readers lately made available by Parliament — Mrs. Pamela Brown, Hansard Editor and her distinguished predecessor, Mr. Dessler Smith. Without being, and hopefully not appearing invidious however, an abiding expression of gratitude goes to the Executive Secretary, Miss Lorna Palmer, whose exceptionally selfless service, patience and fidelity have been exemplary; throughout very taxing times.

[N.B.In this apologia and elsewhere in this Interim Report, the words, phrases and sentences highlighted are, exclusively, emphases added by

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the Public Defender. So too are italics, except where otherwise indicated. This “special” Report pretends to be no more than a brevified treatment of massive evidentiary material. The treatment is eclectic; not exhaustive. The material demands judicial evaluation which is, in all the circumstances, beyond the capacity of a Public Defender. It would be presumptuous of him to pretend otherwise.

An attempt has been made to deal contextually with relevant matters, issues and questions arising from the Emergency activities: some directly, some indirectly and others which appertain. That approach should help to sharpen objective appreciation and perspectives.

Much care has been taken both over what is reported herein and what must remain, for the time being, undisclosed. For there is a time and place for everything.]

(As an aside, the Public Defender makes a humble appeal to Jamaican journalists: in communicating these contents, please do strive for the standards of accuracy, sensitivity, proficiency, professionalism, taste and excellence exemplified by a venerable former editor of The Daily Gleaner, Mr. Theodore Eustace Sealy, CD — an unsung nation builder who, on the rarest of occasions only, awarded himself a byline.)

INTRODUCTION

1. This Interim Report concerns continuing investigations undertaken by the Public Defender (aided by a special one-off budgetary allocation,) into events which led to the greatest loss of life in a single State Security Forces operation in independent Jamaica: seventy-six (76) civilians and one (1) soldier.

A table listing all civilian deceased whose death is attributable to action taken by those Forces, or by others, is attached as Appendix 1. Of the seventy-six, the Public Defender is investigating complaints that forty-four (44) are instances of extra-judicial killings (unjustifiable homicide.) They are listed in Appendix 2.

1. 1.1  In addition, investigations have turned up five (5) cases of missing persons, (pp. 83 - 85 post) four (4) of them extant, the corpse of one (1) of them now having been positively identified by DNA analysis. Because those four may yet be presumed dead, according to law. The remaining four (4) unidentified male corpses may be theirs. If not, the known civilian body count attributable to relevant activities would rise to eighty (80) and the overall death toll to eighty-one (81).
2. 1.2  The deaths occurred during a joint Police/Military ‘incursion’, so called, into the poor inner-city community of Western Kingston, (principally Tivoli Gardens,) following the declaration of a State of

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Emergency in the Corporate Area, effective Sunday, May 23, 2010 and a night-time raid on the residence of Mr. Keith Clarke at far- away Kirkland Close, Red Hills, Saint Andrew – an upper middle class neighbourhood.

3. 1.3  Although popularly called an ‘incursion’, the relevant West Kingston operations may be better and more accurately described as a ‘siege’ – the most elaborate of their kind in Jamaica in almost one-hundred-and-fifty (150) years.
4. 1.4  The Report draws on the several hundreds of hand-written statements of complainants and witnesses, (reduced to typescripts) whose narratives, given separately and independently over more than two years describe what they said happened or happened to them at the hands of the State Security Forces; to their relatives, friends, neighbours and households, in those life- changing days. Statements furnished by State Security personnel to the Bureau of Special Investigations (the BSI) have been considered. Authoritative sources and pronouncements emanating from undoubtedly respectable quarters have also been consulted.

Establishment of temporary Public Defender outposts

5. 1.5  The physical accommodation and facilities at the Office of the Public Defender, (78, Harbour Street, Kingston,) were quite inadequate for coping with the anticipated flood of complaints. Arrangements were therefore made to receive complaints at Public

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Defender outposts, set up at the Tivoli Gardens community centre and at the City Mission Church-hall, Blount Street, Hannah Town.

6. 1.6  Investigations conducted from those locations were also facilitated by the free broadcast of “public service announcements” on radio and television, kindly provided through the auspices of the Media Association of Jamaica (MAJ). The outposts were kept open from June to October, 2010 and were closed, after two weeks’ notice, broadcast as before. Thereafter (and, up to the present time,) complainants attended at the Office.
7. 1.7  The Public Defender is much obliged to the MAJ and media houses as well as the City Mission Church, for their timely and unhesitating assistance.
8. 1.8  Apart from allegations of extra-judicial killings and the disappearance of citizens, there are five (5) other categories of complaint relating to the conduct of who are alleged to have been rampaging members of the State Security Forces.
9. 1.9  Investigations into a total of one thousand two hundred and ninety-five (1,295) fully documented complaints from six hundred and eighty-eight (688) complainants have been completed. They await forensic assessment of money compensation, or other suitable forms of redress. These claims (excluding personal injury etc. and detention are provisionally quantified at one hundred and ten million eight hundred and

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six thousand seven hundred and four dollars+ ($110,806,704.44). This sum does not take account of claims which may yet be made for money compensation regarding the alleged extra-judicial killings. A caring, volunteer cadre of attorneys-at-law in private practice, will presently begin the assessment.

The categories of complaints are: -

1. allegations of extra-judicial killings
2. missing/disappearance of persons
3. personal injury, battery and assault
4. detention
5. malicious damage to real property
6. loss/malicious destruction of personal property, and
7. looting (larceny)

1. 2.1  Another two hundred and sixteen (216) citizens have lodged dormant complaints, totalling more than three hundred in categories iii. – vii. above. Investigations into dormant complaints are incomplete due to lack of evidence establishing prima facie proof of injury, loss or damage.
2. 2.2  (The dormant investigations include an itemized claim for $1,315,126.78 regarding allegations of malicious destruction of instruments, equipment and paraphernalia; of looting of cash and larceny of valuable property etc. belonging to the Tivoli Gardens

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drum corps and drill team.)
2.3 A table showing relevant breakdowns of claims in categories v. -

vii. is attached hereto as Appendix 3.

In the assessment process, all claims will be disaggregated in order to take account of payouts made by the Government to complainants and other persons, amounting to Ninety-Two Million One Hundred Thousand Dollars ($92,100,000.00), according to official figures. This sum was distributed by the Ministry of Labour and Social Security, at the instance of the Social Development Commission, as part of a programme of urgent “social intervention” instituted within weeks of the ‘incursion’. The Ministry states that it includes an amount of Four Million Three Hundred and Twenty-Seven Thousand Dollars ($4,327,000.00), disbursed to help defray the funeral expenses of forty-six (46) of the deceased. No disbursement unrelated to funerary expenses was made on the recommendation of the Public Defender. The disaggregation will guard against duplication of those past money awards.

2.4 This Interim Report should therefore dispel any doubt of the need for an independent public enquiry into matters of the gravest concern as well as immense public importance.

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TIVOLI GARDENS AND “DUDUS”

1. 3.0  Although expressed to be an initiative aimed at restoring law and order in the Corporate Area of Kingston and Saint Andrew, a primary objective of the limited State of Emergency declared in May, 2010 was the capture of the arch-fugitive, Christopher Michael Coke, “Dudus”. Hence, a joint police/military swoop on Tivoli Gardens, his reputed hideout and stronghold, was a natural and principal focus of operations. A sketch of the place and pariah should therefore help to put matters in context.
2. 3.1  The historic Jamaican inner-city community of Tivoli Gardens rose from the rubble of the slum called “Back o’ Wall” which was demolished in the mid-1960s. Back o’ Wall was a dehumanizing, dirt poor, labyrinthine squatter settlement of dirt-floor, zinc and board or wattle-and-daub shanties and hovels, criss-crossed by a maze of narrow earthen footpaths; densely populated; bereft of plumbing and electricity; with distinctively poor sanitation.
3. 3.2  The locality (now characterised by modest but tidily kept concrete tower block dwellings) derives from a social construct: a modular concept of comprehensive urban transformation developed by the Most Honourable Edward Seaga, former long serving M.P. for West Kingston and himself a former Prime Minister. [He was Minister of Development and Welfare when Back o’ Wall was flattened. At the

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time it had been regarded as a People’s National Party (PNP) political stronghold.]

3. 3.3  Tivoli Gardens features a community centre which offers training in art, craft, music, and the dance; a maternity centre and infant school; a church, small grocery shops and other business outfits; a few small parks (green areas) and a relatively large playing field - all in the same complex. Thus it is an almost self-sufficient enclave.
4. 3.4  Over the years, residents of Tivoli Gardens have excelled in many forms of artistic expression and sport, across all age groups, winning many competitions, awards and trophies; sometimes international recognition or acclaim.
5. 3.5  But by May, 2010, Tivoli Gardens had long been at the heart of the governing Jamaica Labour Party (JLP) political establishment in the constituency of West Kingston.

The community has for umpteen years been regarded as a prime example of the Jamaican political phenomenon called the “garrison”. In fact, Rear Admiral Hardley Lewin, a retired Chief of Defence Staff (later Commissioner of Police) once famously described it as “the mother of all garrisons.” (See pp. 181-5 post.)

Over time also, it came to be thought of as a citadel of sorts; the seat of an infamous cross-border crime syndicate named the

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“Shower Posse”, the reputed head of which was Christopher Coke, “Dudus”, the “President”. He grew up there. (“Shower!” is a signature JLP epithet.)

6. 3.6  Coke gained renown as a benefactor of the poor; was both feared and revered; the undisputed ‘Don’. Adults and children alike came to depend upon his largesse. According to his supporters and admirers, it was he who kept a territory relatively crime-free, almost displacing the Jamaica Constabulary Force (‘JCF’), whose members were scorned or deeply distrusted by the citizenry; that it was he who kept children in school and off the streets at night, enforcing his own peculiar brand of discipline.
7. 3.7  Coke’s detractors counter that his tentacles penetrated the institutions of governance and realms of high society, industry and commerce; that peeling away his veneer of respectability reveals a demon needing to be exorcised.
8. 3.8  “Dudus” has now been extradited to the United States of America. He has pleaded guilty to charges of “racketeering conspiracy” and “conspiracy to commit assault with a dangerous weapon in aid of racketeering” and been sent to prison there. His departure has opened up a space for renascent agents of law enforcement where previously many of them feared to tread. The Tivoli office or shopfront of his set-up called the “Presidential Click” now houses a police post. His removal has also created a vacuum in social and

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economic life and “governance” affairs, an aftermath which attracted spontaneous State responses, since much diminished, save as regards law enforcement.

3.9 Most importantly however, Coke’s reputation of crime overlord and, his standing in the community; the long reach of his influence, his patina of benevolent protector of the poor, the political links and patronage which he may have enjoyed and, how all this may have led (inexorably) to the cataclysm of May, 2010, demands close forensic analysis and authoritative documentation. In the process he too should be given the opportunity of a fair hearing by commissioners of enquiry. For there is much that an outcast may be prepared to tell – to the enduring advantage of the greater good.

Overall, Tivoli Gardens is, in many respects, a microcosm of post- independence Jamaica: a place and society fit for further and rigorous scientific and forensic study.

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The PUBLIC DEFENDER and INDECOM distinguished

1. 4.1  It is felt desirable at this early stage, and, for general edification, to outline the status and remit of two State institutions — the Public Defender and the Independent Commission of Investigations (INDECOM). This will not only help to explain and distinguish the functions of these two creatures of statute but should relieve pervasive ignorance which, has been the basis of much misunderstanding.
2. 4.2  Each is an independent Commission of Parliament. Both are required to investigate alleged Security Forces misconduct by reason of which the citizen suffers injury or damage; unjustly.

But while INDECOM’s investigations help to determine probable criminal liability or the taking of appropriate disciplinary steps, the Public Defender seeks redress (ranging from money compensation to an apology) for the victim of abuse or, his estate— particularly in the case of extra-judicial killings.

3. 4.3  The remit of the Public Defender will be dealt with firstly. That of INDECOM will be looked at later (pp. 140 - 7 post) in the context of the uncooperative or recalcitrant attitude to relevant investigations displayed by the Jamaica Defence Force (the JDF.)

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THE PUBLIC DEFENDER: ROLE AND FUNCTION

5.0.0 In law, the Public Defender is not any one man but an independent Commission of Parliament; a hybrid institution (part parliamentary ombudsman and, quasi human rights commissioner) established by statute [the Public Defender (Interim) Act, 2000, [“the (Interim) Act”] S.5] for “the purpose of protecting and enforcing the rights of citizens...”

1. 5.1.1  This Commission is neither an agency nor department of Government – the executive arm of the State. It is therefore not under the control or undue influence of any Minister and reports to none; rather, to a democratically elected bi-cameral Parliament, (the legislative arm) historically constituted by members of two dominant political entities – the PNP and the JLP.

The (Interim) Act repealed and replaced the Ombudsman Act, 1978, which legislated the adoption by Jamaica of ombudsmanry in classical form.

2. 5.1.2  The Commission called Public Defender is largely the brainchild of Mr. Seaga. He conceived an “Advocate-General” as a complement of the Attorney-General, who, historically, was expected to be especially protective of the rights of the citizen but was not regarded as demonstrably so inclined in the post-Independence era. [During the parliamentary debate on the relevant Bill, the Government and Opposition differed over the nomenclature, inter

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alia. It was Mr. Golding (from the Opposition side) who suggested the compromise of ‘Public Defender’ which was eventually adopted.] Thus it is a response to the perceived need for establishment of a State institution specifically mandated to protect and enforce the constitutionally defined fundamental rights and freedoms of the citizen. The Government is guarantor of those rights and freedoms. But a largely quiescent majority of citizens and the poor were, and remain, hugely ignorant of them.

This ignorance has fomented endemic apathy and is alleged to have resulted in routine abuse of those rights (the right to life in particular) by renegade members of the State Security Forces.

5.1.3 The remit of the Commission is defined by Section 13 of the (Interim) Act, which mandates investigation of complaints where the Public Defender is of opinion [ss.(1)] —

“(a) that any person or body of persons—

1. (i)  has sustained injustice as a result of any action taken

by an authority or an officer or member of such authority, in the exercise of the administrative functions of that authority; or

2. (ii)  has suffered, is suffering or is likely to suffer an infringement of his constitutional rights as a result of any action taken by an authority or an officer or member of that authority.”

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The expression “authority” (S.2) refers to Ministries, agencies and departments of Government, inter alia. It therefore includes the JCF, the Island Special Constabulary Force (‘ISCF’) and, (with limitations) the JDF.

4. 5.1.4  It will be clear therefore that the creature called Public Defender is of a distinctly different make-up than its United States namesake, with whom it is often confused, thereby engendering expectations which the Commission was neither designed nor intended to fulfil.

The relevant “constitutional rights” referred to in S.13(1)(a)(ii) of the (Interim) Act are those formerly entrenched in the original Cap. III of the Jamaica Constitution, itself also now repealed and replaced by the Charter of Fundamental Rights and Freedoms (the Charter) enacted by the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011. The Charter took effect on April 8, 2011 but does not, of course, apply retrospectively.

5. 5.1.5  The repealed Cap. III afforded, inter alia -
• protection of the right to life,
• protection from arbitrary arrest or detention,
• protection of the freedom of movement,
• protection from inhuman or degrading punishment or

other treatment and,

• protection for privacy of the home or other property.

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[All of this protection was circumscribed in some way or other and was made subject to provisions of the Constitution which authorized suspension or abrogation of these rights (save for protection of the right to life) during a “period of public emergency” or, if reasonably required “in the interest of defence, public safety (or) public order...” [See — SS.15(5);16(3)(a); 19(2)(a);20(4)(c)(ii);21(6)(a); (22)(2)(a)(i) and 23(2)(i).]

5.1.6 The remit is delimited, inter alia by S.13(2)(b)(ii) of the (Interim) Act by virtue of which the Public Defender is expressly precluded from investigating—

“(a) ...
(b) any of the following actions or matters—

1. (i)  ...
2. (ii)  any action done with respect to orders or directions

to the Jamaica Defence Force or members thereof, or any proceedings under the Defence Act...”

5.1.7 By the Defence Act, S.5, (‘the Defence Act’) the JDF is —

“charged with the defence of and maintenance of order in Jamaica and with such other duties as may from time to time be defined by the Defence Board (the Board).”

The composition of the Board is regulated by the Defence Act, S.10 which provides that it shall consist of the Minister responsible for defence (usually the Prime Minister) who is Chairman; another Minister appointed by the Prime Minister, the Chief of Defence

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Staff and the Permanent Secretary of the Ministry having responsibility for defence.

8. 5.1.8  The JDF consists of a “regular force” and the Jamaica National Reserve (the JNR). Their deployment in policing activities has become quite commonplace, due mainly to an increase in violent crimes. But as Dr. Lloyd G. Barnett states —

“this incipient militarism has only met with mild public protest. Indeed the party political leaders have appeared to be in general agreement with the facile resort to military intervention in the peace-keeping functions of the police.” (The Constitutional Law of Jamaica, 1965, p. 156.)

(So far from exciting “public protest” over the “incipient militarism” and, due no doubt to the dramatic increase in gun crimes over the last four decades, there have, intermittently, been fervent calls for the merger of the JCF, the ISCF and the JDF, creating a single law enforcement agency.)

9. 5.1.9  The regular force and the JNR both fall under the Board and the JDF Chief of Defence Staff. However, the Board’s responsibilities do “not extend to the operational use” of the JDF, for which use, responsibility is “vested in the Chief of Defence Staff, subject to the overall direction of the Cabinet.” (the Defence Act, S.9).

Members of the JDF serve under a system of Military Law, [that part of the body of “service law” described by the Constitution, S.26(1),] which creates special offences related to military service and discipline, including dishonesty, e.g. looting. But when a

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member’s action (on or off duty) amounts to a civil offence, e.g. probable murder (extra-judicial killing) manslaughter or looting, he may be required to stand trial in the Civil Courts, where the domestic criminal law is applied.

6.0.0 Part IV. of the (Interim) Act legislates a “Process of Investigation”.

S.16 thereof lays down the modus operandi. By ss.(11) and (12) it

is provided that -

“(11) On the conclusion of an investigation, the Public Defender may make to the authority concerned such recommendations as he thinks fit and in particular, but without prejudice to the generality of the foregoing, may recommend any or all of the following -

1. (a)  that the action which was the subject-matter of the complaint be reviewed;
2. (b)  the alteration of an enactment, rule or regulation which causes or may cause injustice or infringement of constitutional rights;
3. (c)  that compensation be made to the complainant.

(12) If the Public Defender finds, during the conduct of his investigations or on the conclusion thereof, that there is evidence of a breach of duty, or misconduct, or criminal offence on the part of an officer or member of any authority, he shall refer the matter to the person or body of persons competent to take such disciplinary or other proceedings as may be appropriate against that officer or member and in all such cases shall lay a special report before Parliament.”

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Thus the Public Defender is an investigator and intermediary who remedies maladministration and enforces the constitutional protection and guarantees: a nascent species of sentinel on the qui vive, not an arbiter. If his recommendations for remedying infringement of constitutional rights are not accepted by the Government there is recourse to the Judiciary (the Courts) - the third arm of the State. Legal aid may be awarded for those purposes, but for them only.

6.1.1. A fact that needs to be or to be more fully appreciated is that as a creature of statute, the Public Defender operates within boundaries delineated by law; as illustrated by the foregoing. Exceeding them renders his actions ultra vires, although in an evolving democracy a purposeful Public Defender must be proactive; must constantly press those boundaries.

[N.B.

The Public Defender’s

• modus operandi of pressing the boundaries of a

statutory remit;

• initiative in launching the relevant investigations
• conduct of those investigations;
• cautious and selective revelation of details concerning

those ongoing and incomplete investigations and,

• care taken over and discretion exercised in deciding

upon the contents of this Interim Report,

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reflect an appreciation of the ambit of the statutory mandate.

Further, because of the exigencies of a clearly extraordinary situation (worsened by pervasive anxieties) the Public Defender’s “recommendations” to “the body of persons competent to take .... proceedings as may be appropriate”, i.e. the Government and the Kingston and Saint Andrew Corporation (the KSAC), against “(the) officer(s) or member(s)” of relevant “authorities”, i.e. the JCF, the ISCF, the JDF and the KSAC, are included herein, (see pp. post) without prior reference. In the result and with some measure of reticence, the Public Defender respectfully draws the attention of the Government and the KSAC to those recommendations.]

BACKDROP OF THE ‘INCURSION’ OR ‘SIEGE’

7.0.0 Unfolding of material events could be said to have begun on the night of May 17, 2010. The then Prime Minister, Mr. Golding, announced in a nationwide television and radio broadcast that the Minister of Justice would, after all, issue an authority to proceed under the Extradition Act, 1991, S.13 (1), in relation to a request by the United States of America (the USA) for the extradition of Christopher Coke. The requisition had been received on August 25, 2009. Coke was wanted for trial in the USA on drug trafficking and gun-running charges but was now a fugitive, ignoring entreaties to surrender himself and, evading capture. His whereabouts were known to a few only.

7.1.1 The fateful disclosure ended a period of some nine months, during which the Jamaican Government vacillated over its response to the extradition request. It had come under ever mounting pressure from the government of the USA, the local Church, private business sector and “civil society” groupings, to forego any or any further court proceedings in the matter. The issuing of the authority to proceed had been kept on hold, pending the outcome of those proceedings. But following upon that announcement, events took on a momentum of their own.

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7.1.2

March on downtown Kingston

A large throng of West Kingston women, nearly all of them dressed in white, marched into downtown Kingston. They were protesting the signing of the authority to proceed and Coke’s imminent arrest. The women displayed fierce loyalty to him. At least one of them considered him “next to Jesus.” Others would “dead fi Dudus.” (Were these women dragooned or cajoled ?. Or was theirs a spontaneous demonstration of support and affection for Dudus ?. Or, indeed, was the turnout dictated by a combination of these and other complex socio-economic factors ?.)

Vehicular entrances to Tivoli Gardens were barricaded. There were violent attacks upon police stations at Darling Street and in Hannah Town, West Kingston. Two police officers were killed in Mountain View Avenue, eastern Kingston - by all appearances, an event not directly connected to the extradition request.

Announcement of a State of Emergency; Mr. Golding’s second nationwide broadcast

On the afternoon of Sunday, May 23, 2010, the Government announced that the Governor General had declared a State of Public Emergency. In another nationwide television and radio broadcast that night, Mr. Golding appealed to all law-abiding citizens to remain calm. He said that threats against the safety of the Jamaican people would be driven back. The State of Emergency had been declared based on “information” from the

7.1.3 7.1.4

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Security Forces that actions were being carried out which posed significant threats to law and order in the Corporate Area.

“Since this morning” he said, “violent, orchestrated attacks have been launched on a number of police stations. Two members of the security forces have been shot and injured.” He described the situation as “a calculated assault on the authority of the State that cannot be tolerated and will not be allowed to continue.” (There was a certain display of earnest resolve in the tone and content of that broadcast.) The State of Emergency would enable the security forces to exercise extraordinary powers which included “the power to restrict the freedom of movement, search premises and detain persons suspected of involvement in unlawful activities, without warrant.”

5. 7.1.5  By the evening of May 23, hundreds of well armed and camouflaged soldiers in full battle gear and drawn from various battalions of the JDF and JNR had descended upon West Kingston. They accompanied hundreds more armed policemen (a great many of them masked) drawn from various divisions of the JCF and ISCF. Armoured vehicles and bulldozers (to be used in breaching barricades) were deployed.
6. 7.1.6  A command structure provided for splitting up of the territory into “sectors.” Cordons were established. One in particular, was

tightly placed around Tivoli Gardens, the supposed

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encampment of Christopher Coke. Illegal gunmen loyal to Coke and recruited from West Kingston and beyond were said to have taken up position there, prepared to take on the State Security Forces. The battle lines were drawn. Night fell. Electric power supply to Tivoli Gardens was cut off, intentionally or not. The community was thereby plunged into darkness.

Tivoli Gardens residents advised to evacuate

7. 7.1.7  Jamaica Urban Transport Company buses were parked in Marcus Garvey Drive, less than two hundred yards away and in the contiguous Industrial Terrace. All persons remaining in the community (some had fled earlier) who wished to, were advised by public announcements to avail themselves of transport to unspecified “secure locations”, before the projected outbreak of hostilities. A relative handful of residents accepted the offer. Many of those who stayed put, later claimed that this was due to fear for their lives and security of their property. They were simply not minded to venture out into the dark and risk being shot, they said, by soldiers or policemen. They also claim to have been guided by the experience of previous Security Forces assaults on the community in 1998, 2001 and more recently 2008, in which more than forty (40) citizens were slain.
8. 7.1.8  Beyond Tivoli Gardens, a gripping anticipated showdown between organized criminal elements loyal to Dudus and the forces of

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authority brought the capital of a small nation to the edge of its seat. Some transfixed citizens saw it veering to the edge of the abyss; others, to the brink of anarchy.

7.1.9 But above the fray hovered the regnant Constitution of Jamaica; the fundamental law: the great bastion and bedrock of the rule of law. In high places and low, there was a call to duty. There was a role for the Public Defender, the Commission of Parliament mandated to protect and enforce the citizen’s fundamental rights and freedoms. For “amidst the clash of arms, the law is not silent....”

JCF announcement of operations

8. On Labour Day, Monday, May, 24, 2010, (a public holiday) the JCF announced that earlier in the day it had launched an operation in Tivoli Gardens and surrounding areas of West Kingston. The joint military/police operation, a news release stated -

“(was) aimed at executing a warrant issued by the courts of Jamaica for the arrest of Christopher Michael Coke otherwise called ‘Dudus’ as well as to restore the area to stability after three consecutive days of barricading by criminal elements and wanton attacks on the police force. During the operation, seven members of the Security Forces were injured. Six of the seven were shot, one succumbed to his injuries. The other was injured in an accident. The operation is still ongoing and the Security Forces are resolute in bringing the area to stability so that law abiding citizens of West Kingston and its environs can get on with their lives in peace. The Security Forces are reminding the residents of

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Kingston and St. Andrew that there is a limited State of Emergency in effect and residents are asked to remain indoors.”

(It will be noted that the latter request now practically reversed the advice given earlier to residents of Tivoli Gardens.)

Mr. Golding addresses Parliament

1. 8.1  The following day, Tuesday, May 25, Mr. Golding told a sombre House of Representatives that since Sunday, May 23, several roads in West Kingston had been barricaded, impeding the movement of pedestrian and vehicular traffic as well as normal police law enforcement operations. He continued —

“ Intelligence gathered by the security forces indicated that in anticipation of the execution of a warrant for the arrest of Christopher Coke, heavily armed men were preparing to attack members of the security forces. Intelligence further suggested that criminal elements in other communities intended to launch attacks on the security forces in order to divert attention and resources from the focused operation of what the situation in West Kingston required.”

2. 8.2  On Saturday night, May, 22, a police patrol car had been attacked by gunmen on Mountain View Avenue, East Kingston. Two policemen had been killed and eight others injured, Mr. Golding said. During that night and next morning, “several police stations in and outside of the Corporate Area” were attacked by armed men using guns and molotov cocktails. These included police stations in West Kingston and Rockfort in East Kingston and, Spanish Town, St. Catherine. The Hannah Town and Darling

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Street police stations in West Kingston were set on fire and extensively damaged.

8.3 The joint police/military operation launched in Tivoli Gardens, he indicated, was meant to bring an end “to this spate of lawlessness and to restore order and calm to the affected areas.” The security forces encountered “sustained and sporadic (sic) gunfire” and in the exchange that ensued, he said, “several” persons were confirmed dead, including a member of the JDF. “Several” others, including twelve (12) JDF soldiers, had been injured. (But see Appendix 12.) The police had reported that “twenty-six” (26) persons were confirmed dead, but it was likely that the number was higher. It was not then possible to determine the precise circumstances in which those persons were killed, Mr. Golding said. More detailed investigations, including eyewitness statements would be required. The most thorough investigations would be carried out, he said.

Public Defender begins investigation

9. The Office of the Public Defender decided to embark upon its own independent investigations. The decision was welcomed by the Government and supported by the parliamentary Opposition. The mutual hope and expectation was that the Public Defender’s perceived independence and disinterestedness would lend transparency and enhance confidence in the integrity of the

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“detailed investigations” foreshadowed by Mr. Golding’s presentation. This Interim Report concerns those independent investigations which, are continuing.

DECLARATION OF STATE OF EMERGENCY AND THE ‘INCURSION’ OR ‘SIEGE’

10.0.0 The ‘Tivoli incursion’, so called, had its genesis in a Proclamation made by the Governor-General, (on the advice of the Government,) exercising powers conferred by the Constitution, S.26(4)(b). A State of Emergency was declared in respect of the parishes of Kingston and Saint Andrew. The Proclamation, made also in accordance with the provisions of the Emergency Powers Act, 1938, (as amended) S.2(b), was published in the Jamaica Gazette dated Thursday, May 13, 2010, (Appendix 4. ) but was actually issued under the Broad Seal of Jamaica on Sunday, May 23, 2010.

1. 10.1.1  The State of Emergency was expressed to remain in force for one month, with effect from that day, but was extended by resolution of the House of Representatives for another month, [the Constitution, S.26(6)(b)] ending July 22, 2010. The House also extended the area covered by the State of Emergency to the Parish of Saint Catherine.
2. 10.1.2  Thus, the Proclamation eventually embraced the entire geographic area designated the “Kingston Metropolitan Region.”
3. 10.1.3  The Proclamation propounded His Excellency’s satisfaction —“that,

consequent on certain decisions of the Government, action has been taken or is immediately threatened by a person or body of persons

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therein of such a nature and on so extensive a scale as to be likely to endanger the public safety or to deprive the community, or any substantial portion of the community (the parishes stated above) of supplies or services essential of (sic) life;...”

10.1.4 Those recitals suggested official conformity with the provisions of the Constitution, S.26(5)(b) and the Emergency Powers Act, 1938 (as amended). The latter statute was enacted in the wake of the labour riots of that year. That statute is one of two by virtue of which fundamental rights may be abrogated during periods of public emergency. The other is the Emergency (Public Security) Act, 1939 (as amended,) passed during World War II, but which is specifically concerned with the state of or threat of war, not domestic upheavals. [The two measures are examples of pre- Independence legislation expressly preserved by the Jamaica (Constitution) Order in Council, 1962, S.4(1)]. As Dr. Barnett explains -

“the former law empowers the Governor-General on the advice of the Cabinet to make Regulations during a period of public emergency for the purpose of securing the essentials of life to the community. For this purpose, the Regulations may empower Government Departments and public officers to do such things as the Governor-General deems necessary for the preservation of peace, for securing and regulating the supply and distribution of food, water, fuel, light and other necessities; for maintaining the means of communications; and for any other purposes essential to the life and safety of the community. The Regulations may also make such provisions as the Governor-General

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[N.B.:

10.1.5 For the record, the Public Defender formally accepts that the situation which confronted sovereign Jamaica at the material time showed that:

1. the country was indeed faced with a state of public emergency;
2. the circumstances then prevailing near overwhelmed the capacity of the JCF and its auxiliaries, (the primary law enforcement agents of the State;) those circumstances challenged or threatened the institutional capacity of the State itself to subdue illegally armed forces apparently operating under the control of organized crime;
3. there does appear to have been evidence suggesting that some of these forces had been assembled in West Kingston to protect the fugitive, Christopher Coke and, to obstruct or prevent his arrest and that therefore,

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thinks necessary for making the exercise of those powers effective.” (op. cit. p. 426.)

State of Emergency justified

d. the circumstances justified the Government’s resort to the Constitution, S.26(4)(b), (5)(b) and (6)(b) as well as the Emergency Powers Act, 1938, SS.2(b) and 3.]

10.1.6 The Governor-General’s “satisfaction” regarding the state of affairs then prevailing [S.26(5)(b)] is significant. As was held by a seven-member Supreme Court of Pakistan in Faroog Ahmad Khan Leghari & Ors. v Federation of Pakistan & Ors. [(July 28, 1998) (Commonwealth Human Rights Law Digest, (2008) p. 119 ], interpreting a provision [Art. 232 (1)] of the Pakistan Constitution similar to S.26(5)(b) —

“ (4) The satisfaction of the President, provided for in Article 232 (1), is subjective and is a condition precedent to the exercise of power. If it can be shown that there was no satisfaction, or that it was absurd, perverse, mala fide (sic) or based on extraneous or irrelevant grounds, it will not amount to satisfaction for the purposes of (the Article). Given its far-reaching consequences, a proclamation of emergency must have a clear nexus with the objects mentioned in (the Article...”) [Minerva Mills Ltd. & Ors. v. Union of India & Ors. AIR (1980) SC 1789 (India Supreme Court) applied.]

Moreover —

“ (6) The validity of a proclamation of emergency is prima facie to be examined on the basis of the statements made in it. Statements made by Government or political leaders may help to clarify the nature of the emergency or indicate Government intention but they do not provide a sound basis for imposing an emergency.”

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And further —

“ (12) Parliamentary approval of a proclamation of emergency or order suspending fundamental rights does not have the effect of validating any inherent illegality or unconstitutionality.”

Suspension of fundamental rights

7. 10.1.7  Certain fundamental rights and freedoms guaranteed by Cap.3 of the Constitution (as it then stood) e.g. protection from arbitrary arrest or detention, the freedom of movement, privacy of the home and certain provisions to secure the protection of law, were effectually suspended. The Proclamation also legalized, “... measures that (were) reasonably justifiable for the purpose of dealing with the situation that (existed) during the period of public emergency.”

Conferment of emergency powers

8. 10.1.8  Simultaneously, His Excellency promulgated the Emergency Powers Regulations, 2010, under the Emergency Powers Act, S.3. The Regulations conferred wide powers upon “authorized person(s)” i.e. any constable, member of the JDF, the Fire Brigade and “any person authorized by (a) competent authority” to take action in relation to –
• any service maintained or operated by any public or private enterprise including the disposal of the bodies of deceased persons
• the protection of public property

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• the protection of public roads
• a power to block roads and set up cordons
• a power to require information
• a prohibition of assemblies
• a prohibition against discharging firearms
• the power to establish curfews
• the power to restrict access to any area
• the power to search premises
• powers of questioning persons
• powers of arrest and detention
• the search of persons
• confinement to places of residence
• the closing of premises and,
• the control of places of public resort and entertainment.

10.1.9 In the result, the community of Western Kingston (Tivoli Gardens in particular) was placed under austere lock-down. There was robust enforcement of the regulations, particularly in the first fortnight after the Proclamation.

Review Tribunal

10.2.0 A Tribunal for review of cases of “detention of (sic) restriction” was established under the chairmanship of Mrs. Pamela Benka-Coker, Q.C., Chairman of the Disciplinary Committee of the General Legal

Council, to deal with applications by detainees for relief. [See the Constitution, Cap.III,S.16(4) [repealed and replaced by the Charter

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of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011, S.2] and the Emergency Powers Act, 1938, S.3(2)(a)]

1. 10.2.1  The right to liberty and freedom of movement [the Constitution, Cap.III (repealed) S.16.—(1)] is a most valuable fundamental right. The citizen may only have been deprived of it in accordance with the provisions of SS.16 and 26 (due process.)] Every moment of detention is to be treated as unlawful unless it could have been shown to the satisfaction of the Review Tribunal (or the Court) that it was not ultra vires or otherwise unlawful: [Liversidge v. Anderson (1942) AC 206 (UK HL )] [But see the (Interim) Act, S.13.(2)(b)(i) — p. ante and pp. and post.]

Jamaica House Meeting

2. 10.2.2  On Wednesday, May 26, 2010, the Public Defender accepted Mr. Golding’s invitation to attend a meeting at Jamaica House. Other persons present included then Deputy Prime Minister and Minister of Foreign Affairs, the Honourable Dr. Kenneth Baugh and Minister of National Security, the Honourable Dwight Nelson; the Commissioner of Police, Mr. Owen Ellington, then Chief of Defence Staff, Major General Stuart Saunders, Bishop Herro Blair, Political Ombudsman and Chairman of the Peace Management Initiative and, Dr. Joslin Salmon, then Chairman of the Jamaica Red Cross. The meeting concerned the joint JCF/JDF “operations” in Western Kingston, (Tivoli Gardens in particular,) in the purported exercise

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of the Emergency powers. At Mr. Golding’s invitation, Bishop Blair, Dr. Salmon and the Public Defender agreed to tour Tivoli Gardens under the “protection” of the Security Forces.

Tour of Tivoli Gardens and ‘Rasta City’; Tales of rampant aggression

3. 10.2.3  The ensuing tour lasted all day. A picture of great desolation presented itself. There were plaintive litanies of woe from residents and the scene of a community under tightly restricted freedom of movement. At least one wounded young man left unattended and, two male corpses lying uncollected, were seen. It was Bishop Blair who alerted an indifferent JDF sector Commander to the fact that the young man was moving spasmodically. But by the time he came to receive attention from the security personnel, he had apparently died.
4. 10.2.4  Tivoli Gardens bore classic features of a war zone. There were burnt-out houses and apartments and unmistakable signs of the explosion of incendiary devices, described by residents as “bombs”. There were many blood-spattered interior concrete walls and floors and aluminium windows shot out or riddled with bullet holes indicating inward heavy weapon fire. Exterior walls of buildings also, bore physical indicia of high-powered weapon fire. Frightened and traumatized residents (children, women and aging men but mainly women) cowered in fear. Dwellings had been thoroughly ransacked. Furniture, electric and electronic

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appliances and equipment had been dismantled, destroyed or damaged. Members of the Security Forces (closely deployed everywhere) kept guard at the ground floor entrances or lobbies of tower blocks. Residents were confined to the interior of apartments or houses.

5. 10.2.5  Complaints of indiscriminate rough handling and excessive abuse by State Security personnel came from all quarters of citizens. They related accounts of a ferocious organized assault on the community, marked by unrelenting aggression. They claimed that soldiers and policemen alike told them that they were being punished for supporting and hiding “Dudus”; otherwise for attacking and setting fire to the Hannah Town and Darling Street police stations. In dazed disbelief, they wondered aloud why they had been abandoned and left defenceless by their M.P., Mr. Golding and, what would now become of them.
6. 10.2.6  Some members of the Security Forces wore hideous hooded masks in the broad daylight. One police constable in particular menaced the Public Defender during the tour of a building. A police sergeant, who refused to identify himself, to whom a protest was directed, evinced no response. It was left up to the Public Defender therefore to assert himself and so forestall the constable’s boorish and disrespectful behaviour, by demanding that he keep his distance.

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‘Rasta City’

7. 10.2.7  There is a squatter community situated in the shells of concrete buildings formerly occupied by the defunct Public Works Department (PWD) on lands outside the southern perimeter walls of Tivoli Gardens. It is known as ‘Rasta City’. It appears to have been served by illegal connections to the Jamaica Public Service Company Limited power grid. Scores of persons – a few old men, young women and children - were found living there on May 25, 2010. They too complained that “bombs” had been thrown into some of the buildings or dropped from the air and had exploded, sparking fires. The entire upper floor of one old PWD building, (a squatter dwelling) was gutted. There were also a few burnt out or partially destroyed board shacks. The surrounding area was bushy with domestic animals, pigs and stray dogs, roaming about.
8. 10.2.8  As a result of representations made by the Public Defender to the JDF sector commander, Rasta City dwellers were allowed “air out” time to fetch water and empty slop pails and so relieve the heavy stench of accumulated human body waste, feminine and babies’ sanitary disposables.
9. 10.2.9  The touring party thoroughly inspected Rasta City, including the burnt-out buildings said to have been “bombed”. The party checked out reports or rumours that dead bodies had also been burnt there. But no evidence of burnt bodies was detected.

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Detainees

3. 10.3  In late afternoon, the tour party indicated that they wished to inspect the facilities and conditions under which detainees were being kept, at a former Seprod company warehouse complex in Marcus Garvey Drive. Instead of being conducted to the complex, the tour party were shunted to the Police Area 4 Headquarters whence they had departed for Tivoli Gardens. The explanation for skirting the complex, (bellowed en route by the officious constable mentioned earlier) was that there were “gunmen in the area”. On the insistence of the Public Defender however, the Police Area Commanding Officer caused the tour party to be escorted back to the complex. There, hundreds of detainees (mainly men of mature years) were found housed in a large old zinc-roofed warehouse. Younger detainees were tightly bunched up behind a fence of razor wire, many kneeling in gravel. They were all being “processed”. There were no sanitary conveniences.
4. 10.4  In time, the detainees [peaking at more than one thousand (1000)] were transferred to either Harman Barracks or to the National Arena. By midday Saturday, May 29, however, all those held at the National Arena had been released. (According to a member of the Police High Command, only five (5) detainees remained in custody thereafter; for further “processing”.) (See also p. post.)

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Visit to Madden’s Funeral Home

11. From the Seprod commercial complex, the tour party repaired to Madden’s Funeral Home, North Street, Kingston. At our insistence, we were admitted to the morgue and viewed three large mounds of tagged corpses, most in varying stages of decomposition, many nude or scantily clad, piled up on the bare concrete floor: a macabre, surreal spectre of mass slaughter. At first, the two insensate and impatient morgue attendants on duty could give no accurate tally of these dead.

By that time it was nearing 6:00 PM.

“Debriefing”

12. After viewing those bodies, Bishop Blair and Dr. Salmon departed to Vale Royal for a “debriefing” with Prime Minister Golding. The Public Defender remained behind to take a tally of the dead then piled up at Madden’s, who, were found to number fifty-six (56). In the meantime, radio transmissions which were overheard indicated that there were sixteen (16) corpses still lying in thoroughfares in Western Kingston [nine (9) of them in Darling Street], waiting to be picked up. Thus, the Public Defender, upon arrival later, was able to challenge or refute the Commissioner’s report to the Prime Minister, that as at the time of the “debriefing”, there had been forty-four (44) civilian fatalities. (It may well have been the

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extremely tense and volatile situation then existing, which stalled the flow of accurate information from the ground on up.)

13. But when the Public Defender remarked upon the “disparity between the number of civilian dead and the number of firearms” said to have been recovered up to that time, (i.e. 72:4,) the sedate Commissioner of Police and Chief of Defence Staff concurred that the ratio was “not unusual”. Having regard or, compared to what ?. The gentlemen will want to explain that rejoinder some day. For this seemingly inscrutable response to a matter of such gravity and historical importance suggested that the heads of the Security Forces actually regarded the death toll as a matter of no, or no particularly notable consequence. [Perhaps this explains the initial failure or delay by the Commissioner to order the prompt start-up of police investigations into strident allegations of wide- scale extra-judicial killings. This had been an urgent recommendation made by the Public Defender, to the head of the BSI. (See Appendix 10. and p. 158 – 60, post.)]

Letter to Police Commissioner and Chief of Defence Staff dated May 26, 2010

14.1 There was a follow-up meeting next morning, May 27. Later that day, the Public Defender was moved to address a letter to the Commissioner and the Chief of Defence Staff, jointly, recording “issues of grave concern”. The letter which is attached hereto

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marked Appendix 5. speaks for itself. But particular reference may be made to:

1. the necessity that they “bring home to those under (their) command that the ... State of Emergency (did) not herald any open season, permitting unlawful departure from the tenets and principles of the rule of law; that the extraordinary power of cordon and search, seizure, arrest and detention without warrant conferred, must be strictly adhered to and be applied with compassion and restraint”;
2. the attention drawn to the ratio of known civilian deceased to firearms allegedly recovered, (by then standing at 73:5,) the “evident disproportionality” obviously suggesting that there had been “excessive use of deadly force”;
3. the restriction upon the freedom of movement of citizens of Tivoli Gardens, Denham Town and Hannah Town in particular, keeping “women and children confined round-the-clock to the cramped condition” of their homes which, was considered “unjustified and unacceptable;”
4. the allegation of “demeaning and highly disrespectful verbal abuse” of residents of Tivoli Gardens by

personnel in the lower ranks, who needed greater

supervision and control;

5. the fact that twenty-three unidentified, decomposing

bodies had been taken to the May Pen Cemetery and, laid out on the bare ground for on-the-spot autopsies and immediate interment and,

6. the need for systematic identification of persons not

afforded access to medical attention and medication.

2. 14.2  In the public interest, the letter, which was copied to the Prime Minister and to Bishop Blair, was released to the news media. This generated considerable dismay, public debate and adverse commentary, mostly in relation to the “evident disproportionality” referred to at ii. above.

In the following weeks, scores of firearms were alleged to have been “discovered”, “found” or “recovered.” (See pp. 43 – 5, post).

3. 14.3  It must now be noted that disproportionality is also reflected in the ratio of civilian to State Security Forces fatality resulting from ‘incursion’ or ‘siege’ activities – 75:1, suggesting that there was indeed excessive or undue resort to lethal force by those Forces.

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Burial plans aborted

15. But prior to that letter (Appendix 5.) the Public Defender had

alerted the Prime Minister (by telephone) to the matter of the corpses intended for immediate interment. With great alacrity Mr. Golding directed that they be retrieved: that in fact all corpses should be “frozen”, pending autopsies. In the event, the bodies were merely refrigerated. This cooling of the corpses slightly slowed accelerating decomposition. In many instances, if not most, decomposition had been worsened by extraordinary delay in collecting them from the streets, dwellings and tenements of West Kingston. But police witness statements suggest that the delay was prolonged in part due to illegal sniper fire. (See p. post.)

X-ray of corpses

16. Acting upon independent advice, the Public Defender insisted that all corpses be x-rayed, prior to the commencement of autopsies. In the result, x-rays were done in secrecy, under special arrangements organized with the assistance and cooperation of the Ministry of Health.

After each was x-rayed, (by which time some were very badly decomposed or, had become skeletonized) thorough autopsies were performed on the corpses of seventy-five (75) persons whose

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death by gunshot trauma or by explosive devices are known to have occurred during the ‘incursion’. With the aid of x-ray films, every scrap of foreign body, (metallic or otherwise,) was extracted from each corpse and delivered to the police for transmission to the Government Forensic Science Laboratory. Forensic examination and evaluation will determine their evidentiary value.

Death toll/body count

17. But to this day, speculation fueled by anecdote and hearsay persists, regarding the precise civilian death toll related to the ‘incursion’. In February, 2011, information was relayed to the Public Defender that “about two hundred (200) dead bodies” were being “stored at a cold storage” in West Street, Kingston. However, a thorough search showed that this report was unfounded.

Weapons “finds”/“discoveries” etc.

18. Various JDF accounts about the “discovery” etc. of weapons of varying calibre, given at press conferences called in the weeks of and immediately following May 30, 2010, all came in the wake of the Public Defender publicly expressing grave disquiet over the remarkable ratio of deceased to weapons “found” or “discovered”. These claims should therefore be subjected to severe scrutiny. Put another way: the story behind the Who, the Where, the What, the When and Wherefore and the How, of

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each alleged find, should be put to the acid test of rigorous forensic examination: for no fewer than six reasons, viz.

1. the time of the supposed finds, and the timing of their announcement;
2. there is evidence, albeit anecdotal, that most of those weapons actually came from the large stockpile of arms seized and maintained by the Security Forces, prior to and in operations entirely unrelated to the ‘incursion’;
3. there appear to have been no arrests made or charges laid in connection with any of the alleged finds;

iv announcement of the “finds” or “discoveries” fit a pattern of the JDF making public pronouncements by way of damage control (quick-fix or flip-flop responses to embarrassing disclosures about the conduct of army personnel during the ‘incursion’) e.g., the use of mortar rounds or, conflicting with earlier statements of their spokesmen e.g., the presence of, the role played by and assistance derived from the USA Department of Homeland

Security surveillance aircraft during those

operations (see pp. post.);

5. it has not been suggested or alleged that any of these finds were made within the walled perimeter of Tivoli Gardens, the supposed hottest theatre of confrontation with armed

combatants and

6. thus, the veracity of those accounts will

elucidate and help determine the elusive truth of the circumstances surrounding the death of the greatest number of citizens in any one State Security Forces operation in the history of independent Jamaica.

Questions arising from ‘incursion’ activities

19. The Public Defender’s investigations also throw up many broad questions for due consideration. Some examples are:

1. What was the level of resistance actually encountered by the Security Forces or, such as would have justified the scale of carnage ?.
2. Did the operational plans for the capture of the fugitive Coke or the execution thereof include a regime or element of crude profiling of citizens who stayed put, despite warnings, as supporters or sympathizers of

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“Dudus” or, by virtue of which young males found in Tivoli Gardens were, ipso facto, to be considered (potential or actual) combatants and thus be eliminated ?. Put another way: did the State Security Forces declare open season in West Kingston, (Tivoli Gardens in particular) by virtue of which there was flagrant disregard for the Jamaica Constabulary Force Human Rights and Police Use of Force and Firearms Policy (the JCF Policy,) (see pp. post.) leading to the death of so many civilians ?.

3. Did execution of the operational plans illustrate or exemplify a “one size fits all” approach to policing or law enforcement ? and,
4. Was there a cynical intention (conveniently but, disingenuously) to explain away the death of so many as unavoidable “collateral damage,” in the hope that that explanation would satisfy the expectations of an apprehensive, gullible or quiescent citizenry ? .

SUPPORT OF INVESTIGATIONS BY THE PARLIAMENT, THE UNDP, INTERNATIONAL DONOR PARTNERS AND OTHERS

20. Having only a small cadre of investigators, (a Deputy, a Director and four others) the Public Defender was obviously not sufficiently equipped to conduct investigations as momentous, or, of the magnitude of those under consideration: a necessary but challenging undertaking which required the engagement of temporary investigators. The Police Civilian Oversight Authority (PCOA) also volunteered the temporary services of two staff members. They represented the Public Defender as lay observers at the autopsies. Their assistance was halting, though better than perfunctory.

Supplemental funding provided

21. By way of a 2010/11 Supplementary Estimates of Expenditure, Parliament approved special funding of J$16,845,000.00 to defray the Public Defender’s State of Emergency investigation expenses. That sum was itself augmented by an amount of J$9,645,360.34, vired from the annual budget of the Office. The total sum of J$26,492,360.34 was spent as accounted for in Appendix and, in a Status Report requested by the Public Administration and Appropriations Committee of the House of Representatives in accordance with Order 73A of the Standing

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Orders of the House. (See that Report, dated October 10, 2011, p.19.)

Forensic Sciences

22. The most important aspects of the Public Defender’s investigation relate to allegations of extra-judicial killings (unjustifiable homicide) and involve the forensic sciences of pathology, ballistics and radiography.

Worldwide search for assistance

23. Fortunately, with the solicitous entreaties of Dr. Pauline Knight, former acting Director of the Planning Institute of Jamaica, and Ambassador Evadne Coye, then Permanent Secretary in the Ministry of Foreign Affairs, support soon came from the UNDP. At the request of the Public Defender, they persuaded the UNDP to conduct a worldwide search and survey of friendly and sympathetic foreign governments prepared to help out.

Who killed Who ?.

24. In particular, the Public Defender urgently needed the support of respected forensic pathologists to act as independent observers at autopsies on the bodies of all persons whose death was attributable to activities during the State of Emergency. For it was (and remains) essential, that it be determined which of the deaths was caused by bullets discharged from weapons issued to

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members of the State Security Forces and fired during the ‘incursion’ and, the assault on Mr. Clarke’s house; or by anyone else, e.g. armed combatants or illegal gunmen.

25. Thus, ballistic examination was (and remains) a key process.

It followed that, as far as possible, all spent projectiles or fragments lodged in any dead body, should be recovered for the purposes of forensic examination, evaluation and comparison. It was therefore imperative that all relevant corpses be x-rayed.

Assistance offered by friendly nations

26. The UNDP search and survey turned up assistance from governments of five (5) friendly donor countries viz. (in alphabetical order) Australia, Colombia, (the Province of) Ontario, Canada, Portugal, the United Kingdom and, the United States of America.
27. As stated earlier, the Public Defender is most grateful to the UNDP and, the governments of the donor countries, for their unstinting support. The outstanding work and assistance of the eminent forensic experts made available was first rate. (An exchange of

letters between Mr. Minh Pham, a former Resident Representative and the Public Defender records an appreciation of the work of each other in the matter of these investigations.)

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Observer Pathologists

28. The eminent observer pathologists from the countries aforementioned present at the autopsies and representing the Public Defender were (in alphabetical order,) —

Dr. Stephen Cordner, Professor of Forensic Medicine, Monash University, Australia
Dr. Elizabeth A. Laposata, MD, FCAP, FASCP, of Boston, Massachusetts, U.S.A.

Dr. Maria Dolores Morcillo Mendez, MD, Forensic Doctor, Specialist in Criminal Law and Certified Forensic Expert, of Colombia
Dr. Maria Cristina Nunes de Mendonca, MD, PhD, of Portugal and,

Dr. Pollanen, MD, FRC(Path.), DMJ(Path.), of Ontario,

Canada.

29. The observer pathologists each completed a two or three-week tour

and furnished independent autopsy reports pro forma. All of these reports have been disclosed to the Government.

Observer oversight

30. The “PURPOSE” of the oversight/observation of each observer pathologist designated by the Public Defender, courtesy of the UNDP, was to provide independent commentary on:

“1. the state of the body;

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2. identification of the corpse;
3. all the injuries present, including gunshot wounds. If

gunshot wounds are present, then to comment on –

1. the number and locations on the body of the entry

and exit wounds;

2. the number of bullets in the body;
3. the path of the gunshot wounds in the body and,
4. the range of discharge of the firearm(s);
3. the cause of death;
4. any other medicolegally relevant findings and,
5. the ‘completeness’ of the post-mortem examination.”

Agreement re autopsy Protocol

a meeting on June, 14, 2010, chaired by the Public Defender,

31. At
an initial post-mortem Protocol was agreed between Dr. Dinesh Rao DNB, MD, DFM, Government Consultant Forensic Pathologist and former acting Director of the Legal Medicine Unit of the Ministry of National Security and Dr. Michael Pollanen, Public Defender observer pathologist (Appendix 7.) That Protocol was signed by Dr. Rao and Dr. Pollanen but was not faithfully followed initially. For example, after a first post-mortem done on June 15, 2012, the next nine (9) were performed two (2) at a time in adjoining rooms. Dr. Pollanen reported that some dissections and the retrieval of spent bullets or fragments was delegated to

morgue assistants. The assistants searched for these foreign bodies after Dr. Rao generally indicated where in the bodies they could be found. Dr. Rao played no part in this process, it was said. These irregular routines aroused the anxious concern of Dr. Pollanen, which he communicated to the Public Defender (Appendix 8.)

32. At the instance of the Public Defender therefore, the autopsies were suspended.

Agreement on revised autopsy Protocol

33. A meeting to discuss the matter was called and chaired by then Minister Nelson. It was attended by senior Government officials including representatives of the Police and the Ministry of Health; the Director of Public Prosecutions, Ms. Paula Llewelyn, Q.C., Dr. Rao, Dr. Pollanen and the Public Defender. A revised Protocol was agreed which, the Minister announced, would subsequently govern the conduct of all autopsies in Jamaica; certainly those relating to police/military killings. (A copy of the revised Protocol is attached as Appendix 9.)

Identification of bodies

34. The autopsies were preceded by a painstaking process of personal identification, agreed between the JCF/BSI and the Public Defender. First, a thick volume of photographs of the West Kingston dead was compiled. A “Ground Zero” number was

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assigned to each. Thereafter (over a four-week period) relatives and other witnesses made an initial photo identification. Each identification was confirmed by reference to the physical remains at the commencement of the matching autopsy.

35. The Public Defender acknowledges the assiduous performance of ACP Granville Gauze, (ret’d) Superintendent (now SSP) Ezra Stewart and Deputy Superintendent (now SP) Gladys Brown of the BSI in the identification process. They were especially diligent in coordinating the post-mortem arrangements.

Autopsies

36. Eventually, over a two-month period, autopsies were performed by Dr. Rao, and his colleague Dr. K.S.N. Prasad, MD, DFM, Government Consultant Forensic Pathologist, on the bodies of all known persons, whose death was attributable to action during the period of Emergency; in purported law enforcement or otherwise.

(The case of one markedly decomposed dead body deserves particular mention. In some respects it is not at all unique. Despite refrigeration, at the time of the autopsy it had become extensively infested with maggots. Relatives who had earlier identified the deceased now found him visually unrecognizable, by reason of discolouration of the

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skin, the collapse of soft tissues and scores of crawling maggots. A family member called to identify the corpse actually fainted at the sight of it. She had to be lifted out.)

Conduct of autopsies in accordance with best practices; Protocols

37. The autopsies were all conducted in accordance with international best practices and United Nations standards (the ‘Minnesota Protocol’) agreed (not without difficulty) between the Ministry of National Security and the Public Defender. (See Appendix 9.) It was later amended — (Appendix 9A.)

Stipulations in the original Protocol included –
• complete musculoskeletal dissection,
• the taking of samples of body fluids and the liver, for

toxicological analysis;

• that projectiles recovered and biological samples taken

should be recorded in the report of post-mortem

examinations and,

• the taking of reference samples to be retained by the

Government Forensic Science Laboratory, in all cases.

37.1 The amended protocol, incorporated the foregoing stipulations, but also established a prioritized approach to the conduct of post- mortems, viz.

a. bodies that had not yet been affected by decomposition

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2. bodies that were slightly decomposed
3. bodies that were “found” skeletonized or in an advanced

state of decomposition, on which no post-mortem

procedures had been performed and,

4. bodies similar to those at c. above, on which partial post-

mortem procedures had been earlier performed (a reference to those badly decomposed and which had been retrieved from the ground at the May Pen cemetery, after a strong protest and, other urgent representations made to Prime Minister Golding, by the Public Defender.) (See p. 42 ante.)

37.2 The amendment also required the establishment of a make-shift mortuary (a refrigerated metal shipping container) set up at the Norman Road, Kingston 4 annex of Madden’s Funeral Home. This was to facilitate post-mortems on bodies which were in an advanced state of decomposition i.e., markedly decomposed or skeletonized. Further, sternum bone and other samples were taken from all bodies and stored for possible future DNA analysis.

Storage of forensic data

38. Careful linkage between unidentified bodies buried by the State following post-mortems and, their related forensic data, is to be maintained in case future requests for exhumation are made.

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[ The requirement to store forensic data has proven astute.

Stored forensic data have facilitated the positive identification (by DNA) of the corpse of Andre Smith, a previously “unidentified” deceased. Andre Smith, a young dual citizen of Jamaica and the USA, had also been previously classified as a “missing person.” But the wishes of his relatives to have his remains exhumed from a pauper’s grave and afforded dignified funerary rights, are stymied by poor record keeping of the Kingston and St. Andrew Corporation, relating to interments at the May Pen Cemetery. The precise burial site is yet to be located.]

(See also pp. 58 and 230, post.)

38.1 Further, statistical DNA calculations done to determine maternity, have disclosed a 99.893% probability that a Tivoli Gardens resident “cannot be excluded” as the mother of another previously “unidentified male”, Dale Anthony Davis.

The KSAC and May Pen Cemetery burial data

39. By the provisions of the Kingston and Saint Andrew (Cemeteries) Act, 1874, (‘the Act’) S.4, over one hundred and eighteen (118) acres of land are declared vested in the KSAC under a trust conveyance “to be held and used as a cemetery for the parish of Kingston.” It is known as the ‘May Pen Cemetery’. S.13 of the Act

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provides for the appointment of a ‘keeper’, now designated ‘Superintendent’. By S.19, the “general management, regulation, and control of the cemetery” is vested in the KSAC. Under S.22 of the Act -

“All burials within the cemetery shall be registered in register books to be provided by (the KSAC) by some officer appointed ..... to that duty, and such register book shall distinguish the part of the cemetery in which the several bodies... are buried...”

Further, those register books “shall be so kept and indexed as to facilitate searches for entries in them, in respect of bodies interred.” Copies or extracts of the books “shall be received in all courts as evidence of the burials entered therein.” And copies of transcripts of the books are to be “transmitted to the Registrar-General” who is required to keep and record them “according to law.”

39.1 S.6 of the Act contemplates and permits assignments of portions of the cemetery to churches or congregations “...for purposes of interment according to (their) rites...” And by paragraph 12. of the Kingston and Saint Andrew (Cemetery) Rules, 1947 (made under S.27 of the Act) the plan of the cemetery has an area shaded green and “set apart for the burial of persons not belonging to, or not claimed by any religious community or society.”

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2. 39.2  None of the unidentified bodies was “claimed.” Presumably therefore, they were buried in an area designated by the KSAC for the interment of paupers. But months of persistent enquiry have failed to afford access to any relevant “register book” or information regarding the “area” of interment of any unidentified corpse.
3. 39.3  It will be noted that the duties imposed by S.22 of the Act are mandatory; not discretionary. The KSAC and the “officer appointed”, (the ‘keeper’/‘Superintendent’) are therefore, prima facie, in continuing breach of statutory duty.

Alleged extra-judicial killings

40. Of the seventy-six (76) known and relevant civilian deceased, (Appendix 1) forty-four (44) (including Mr. Keith Clarke) (see Appendix 2) are alleged to be instances of extra-judicial killings (unjustifiable homicide.) The following six (6) cases are broadly illustrative of these allegations:

Kevin Gordon

40.1 On Tuesday, May 25, 2010, at about 6:30 a.m., a forty-five year old male witness was at home along with his nephew, the deceased, (aka “Porridge man”,) who sold porridge for a living. Security forces entered the home having kicked off the front door. The witness was confined to the verandah while Mr. Gordon was being interrogated inside the house. After a short period of silence, the witness says he then heard gunshots inside the house. The witness tried to run from the verandah but was bullied to “go down on (his) belly and . . . must not

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look”. He alleges however, that about fifteen minutes later he saw three policemen —

“...draw out my nephew Kevin in a coloured sheet, pulled him on the sidewalk, removed his clothes from his body, and throw his clothes in (sic) the sidewalk”.

The witness alleges further that a few minutes later a Police truck drove up and the deceased was thrown into the truck. He too was ordered to board that truck in which there were at least ten dead bodies. After being in the truck for about ten minutes and, following the protest of a policeman, the witness and four other men were allowed to board another vehicle which transported them to the Seprod detention post.

2. 40.2  (There are allegations of some deceased being taken away alive by

State Security personnel but later turning up dead. Did the protest of a percipient policeman prove timely ?. Fortuitous and decisive ?. Did it cause the life of this witness and the other four men to be spared ?. )

Bojon Rochester

3. 40.3  Mr. Rochester, a twenty-one year old welder, lived in Tivoli Gardens, along with his mother, and other family members. On Monday, May 24, 2010, Mr. Rochester and neighbours were standing in a pathway, when his mother heard “a loud noise making a booming sound and the place went dark and the building shook.” She continued —

“After the smoke kinda clear, Bojon was lying down on the ground with other men some of them dead.”

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Mr. Rochester’s mother says that she was unable to go to the assistance of Bojon who, she noticed, was bleeding from his side and crying out for water. “About half an hour to one hour later,” she continues, “police and soldiers came up the pathway and kicked over some of the bodies.” The deceased was still alive and “crying out” for water. “One of the soldiers came over to him and just shot him. It was more than one shot; I heard more than one shot,” she alleges.

The soldier and policemen then “scooped up all the bodies, including Bojon’s and threw them on a big dumper truck.”

4. 40.4  (These allegations also provide prima facie evidence of the discharge and impact of mortar rounds or other explosive devices, described by witnesses as “bombs”.) (See pp. 107 – 10, post and Appendix 11.)

Errol Spence

5. 40.5  On Monday, May 24, 2010, Mr. Errol Spence was at home in Tivoli Gardens along with his mother and other family members. A number of other residents (totalling seventeen persons) were inside their home when members of the Security Forces entered. When asked, the deceased gave his age as twenty-two (22) and his occupation as barber. His mother says that she assured the police that he was her son and that he lived at the said residence. The police requested and were shown photos of him “from baby stage”. His hands were swabbed after which he was told —

“We si yu a run up and down from morning and man mus’

dead fi man live”.
Mr. Spence’s sister was asked how many brothers she had and she said two. A

policeman is alleged to have replied “yu a go have one lef’ ” The deceased was

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ordered over to “the kitchen wall to sit down”. A policeman then “fired four shots in his upper body and head killing him on the spot”. When family members and neighbours cried out in shock and horror, the policeman is reported to have said -

“Wey uno a mek noise in ya fa . . . stop uno noise or else a kill all a uno in ya”.

The young man’s body was then “hauled away” from the house.

6. 40.6  (Swabbing of the hands is a forensic routine by which the presence

of gunpowder primer residue may be detected. If that test proves positive, it indicates either that unwashed hands fired or handled a gun recently or, that they belonged to a person who had been in close proximity to a shooter or someone who had been in physical contact with the shooter, at material times.) (See p. 64,

post.)
Orlando Brown, Fabian Grant and Fernando Grant

7. 40.7  A seventeen-year-old graduate of Denham Town High School resided in Tivoli Gardens, at the time of the ‘incursion’. He was the president of his school’s

Inter-School Christian Fellowship group.

On Tuesday, May 25, 2010 at about 6:00 a.m., the teenager was at home with his father and six other family members, including his brother Orlando, aged thirty-one. Members of the Security Forces stormed into their four-bedroom concrete house by breaking down the back door. They wore dark blue denim uniforms. The faces of soldiers and policemen were painted in black, green and brown camouflage colours. He heard them “cursing several bad words.”

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On the instructions of the security forces, all occupants came out of the house which was thereafter searched. He himself was searched. A policeman told him ‘mek mi smell you han’. He placed my left hand beneath his nose while squeezing tightly on my right hand. It hurt me badly and it became red and swollen.” The witness alleges that all except Orlando were then ordered back inside. The youngster went to a window of his father’s room from where he could see and hear what was taking place across the street where Orlando was being kept guarded by the police.

Orlando Brown was questioned and searched by the security forces. A policeman made a cell phone call and was heard asking: “How far the truck that collect the dead bodies deh ?” Orlando was then instructed by a policeman to “kneel down and place both hands behind (his) head”. After Orlando did as he was instructed, the witness says that he “heard three or four gunshots and then . . . saw Orlando fall...”

The policeman then turned to the direction of two brothers, Fabian (“Pucksie”) and Fernando Grant (“Christopher”) and instructed them – “uno two guh ova deh suh, an duh di same ting”. Both men meekly obeyed the instruction of the officer and knelt facing the building where Orlando was killed. The policeman aimed his “long gun”. According to the witness, he then “heard four gunshots and Fabian fell sideway into a garden and Fernando fell face-down”. In a state of shock, the witness moved away from the window and so cannot say how and by whom the bodies of the three were taken up. But later he saw “a lot of blood in the garden and on the walkway” where the brothers had lain.

(Cf. the proven conduct of the colonial militia and maroons during the Morant Bay Rebellion, pp. 209 – 13, post.)

Absence of clothing and expert forensic evidence

41. The high incidence of removal of clothing from relevant corpses raises reasonable suspicion that there was an intention to conceal, contaminate or destroy vital evidentiary material capable of yielding up important forensic data, e.g., gunshot primer residue or gunpowder burns. The presence of either is one basis of expert opinion regarding distance separating victim and firearm at the material time. That distance is therefore crucial in determining the material proximity of a shooter and the mortally wounded: e.g. whether the shooting was “close range” or whether injuries were “close contact” or not. Thus, expert opinion ordinarily provides independent forensic support for complaints of cold-blooded killings made by witnesses and/or give the lie to allegations of self-defensive action.
42. The nudity of corpses, (total or partial,) and, corresponding with upper and lower parts of bodies where fatal gunshot injuries were inflicted, is established by the Public Defender’s personal observation and by thirty (30) independent autopsy reports. The significance of this will now be self-evident.
43. There may therefore have been a concerted endeavour to conceal highly probative evidence of infliction of “close range” or “close

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contact” gunshot injuries allegedly inflicted by State Security personnel, suggesting that indeed there were unlawful executions.

Further significance of swabbing or smelling of hands

44. The swabbing or smelling of hands (e.g. in the case of ERROL SPENCE and the witness in the case of ORLANDO BROWN & Ors.) is prima facie or at least some evidence of profiling.

In the execution of operational ‘incursion’ plans was there or was there systematic rogue profiling ?.

45. “Field tests” by the State Security servicemen if found “positive” could indicate to the layman tester that a person had recently discharged or handled a firearm or been in close proximity to or contact with someone who had. Was this procedure used to identify illegal gunmen who were later summarily executed ?. (And see p. 61, ante.)

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Unidentified Corpses

46. The unidentified corpses recovered are recorded as —
1. GZ07
2. GZ23
3. GZ29
4. GZ 38 and,
5. GZ41 (seep. )
47. The following is a summary of the findings and expert opinions regarding the cause of death, rendered by the Government pathologists who performed post-mortem examinations (autopsies) on these bodies. Other noteworthy findings and observations of Professor Stephen Cordner, the observer pathologist made available to the Public Defender by the UNDP, and designated by him, follow thereafter. Not much else is known about these deceased. The recorded data regarding their physical characteristics e.g. height, scars, oral features, estimated age and gender, as well as clothing, may yet assist positive identification.

47.1.1. UNIDENTIFIED MALE (GZ 07)

The body of this unidentified male whose age was estimated at twenty-five (25) years, was “discovered between 23rd and 25th May, 2010 at Kingston Public Hospital, by the doctor on duty”. It was removed to Madden’s Funeral Home for Post-Mortem examination, “on the instruction” of the Police. “Information

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obtained” was that “the deceased was shot and injured during a shoot out (sic) between members of the security forces and gunmen in Tivoli Gardens.”

2. 47.1.2  The autopsy was done on July 8, 2010. The body was that of a “somewhat heavy built (sic) six foot (183cm) male.” There was peeling of the skin “with drying present on the face”. White fungus, was seen around the eyes. Both eyeballs collapsed from decomposition. There was an “irregular small scar seen on front of left knee over an area of 4 x 3cm as well as a linear scar 7.5cm in length seen on the anterio-lateral lower left thigh immediately above left knee.” There was one gunshot wound to the body. It is described as “an entrance ...... wound 0.9cm x 0.7cm on left temporal region of the head 6.5cm below top of head, 10cm from anterior midline, 7cm above and lateral to right eye brow without gunpowder deposition.” There was an exit wound on the “right parieto-temporal region of the head 13cm from midline on top of head.” No surrounding sooting or blackening was seen in the temporal tissue.
3. 47.1.3  The pathologist retrieved a severely deformed “copper jacket bullet” (sic) from the posterior part of the left temporal fossa.
4. 47.1.4  An x-ray done on the body revealed -
1. (a)  a large fracture on left side of the skull and
2. (b)  a large fragment in the left mastoid region.

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No fragment was found in the chest, abdomen, pelvis, upper or lower thigh, knee or legs. On the left ankle of the deceased there was a tag with the label “Ground Zero #7, unidentified male” but, on the right great toe there was a tag - “GZ 27”. The left wrist, had a tag marked “Ground Zero #7, Unidentified male”.

5. 47.1.5  The pathologist found the deceased clad in a white t-shirt which was heavily blood-stained and in “Blue under-pants (boxer shorts), blue jeans pants Quest Brand” with a “Complex crest design on both back pockets” and a white belt.
6. 47.1.6  The cause of death was –
1. (1)  penetrating injury to the brain, and
2. (2)  gunshot wound to head.

47.2.2. UNIDENTIFIED MALE (GZ 23)

The autopsy was conducted on July 8, 2010. This body also, was “discovered (lying on its back) between 23rd and 25th May, 2010 at the Kingston Public Hospital, Kingston by the doctor on duty”. The corpse was subsequently, “removed to Madden’s Funeral Home on instruction from the Police for Post-Mortem Examination.” The estimated age of the deceased is “between eighteen (18) and twenty (20) years.”

47.2.3 There were four (4) gunshot wounds to the body described as –
1. an entrance wound on left upper posterior arm 45cm

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below top of head with downward trajectory but

without gun powder deposition.
“2&3”(sic) an entrance gunshot wound 0.5 x 0.3cm on right

lower posterior chest 49cm below top of head, without gun powder deposition; another entrance ..... wound 0.4 x 0.3cm on right lower posterior chest 50cm below top of head and 12.5cm from midline without gun powder deposition.” One bullet travelled through the underlying tissue muscles of posterior chest, fracturing the right scapula, while another “travelled through the underlying tissues, muscles of posterior chest, thoracic cavity, all three lobes of right lung, continuing between oesophagus and thoraco- cervical spine at root of neck and exited on left mid anterior neck, 25cm below stop of head.”

4. an entrance gunshot wound 0.4 x 0.3cm on “left posterior hand on mastoid behind left ear, 16cm below top of head,” without gun powder deposition.

47.2.4 One (1) copper fragment and one (1) “copper jacket” taken from the muscles of the right posterior shoulder, were handed over to Police.

47.2.5 X-ray results revealed multiple fractures to the skull cap. The pathologist observed three tags on the body, one of which was on the right ankle and bore the legend “GZ 23 unidentified male”.

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The corpse also bore a “half length blue jeans pant (cut at lower legs) with worn white-black belt, ‘LEVI’ Brand and a white t-shirt with complex pattern; damage associated with gunshot wounds and removal (cut) seen.”

47.2.6 According to the pathologist, “from information obtained” the deceased was, “shot and injured during a shoot out (sic) between members of the security forces and gunmen in Tivoli Gardens”. He concluded that the cause of death was

1. (1)  haemorrhage and shock and
2. (2)  multiple gunshot wounds.

47.2.7 [Who cut out a portion of the t-shirt ? Why was that done ? Did

the portion removed hold evidence of unburnt or burnt gunpowder; blackening or singeing of the fabric ?. If so, the distance between the muzzle of the firearm and the body of the deceased, when he was shot, could have been reliably estimated by forensic experts. These physical indicia as well as the material distance (range of firearm discharge) are or would be of crucial importance in determining the immediate circumstances surrounding his death.]

47.3.1 UNIDENTIFIED MALE (GZ 29)

An autopsy was performed on July 9, 2010. The body, (age estimated at “above 20 ... but below 24 years”), was “discovered between 23rd and 25th May, 2010 at Tivoli Gardens, Kingston 14

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by the Police.” It was “removed to Maddens’ Funeral Home on instruction from the Police.”

2. 47.3.2  The Government pathologist’s report recorded –
   “...the body is that of 6’1” (186cm) male about 160lbs. Scalp hair short and black. Post-mortem loosening and loss of scalp hair seen. Very slight beard seen on chin. Both eyes collapsed. Post-mortem peeling and drying of skin present on face, anterior trunk, anterior left lower limb, anterior right upper thigh, left upper limb. Complete epidermal loss of skin present on posterior trunk, buttocks and thighs. No visible scar seen on the body. Tatoo of ‘Anchor’ (sic) with long axis vertically seen on right arm on dettoid (sic) region.”
3. 47.3.3  There were two (2) gunshot wounds to the body, viz. —

1. an entrance wound 0.5 x 0.4cm on left lower buttocks, 83cm below top of head and 16.5cm from posterior midline, without gun powder deposition.” The bullet “travelled through the underlying tissues muscles of buttock, ilium entered abdominal cavity passing through psoas muscle, disrupting a loop of small intestine and exited on left lower anterior abdomen on left iliac fossa....”, the intestines

protruding through the wound.

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2. an entrance wound 0.4 x 0.7cm on “right lower anterior neck 26cm below top of head and 6.6cm from midline without gunpowder deposition. Right half of mandible fragmented with missing of teeth (sic) except both incisors and canine. Presumably, the fragments travelled upwards, backwards fracturing mandible, ricocheted downwards and to left passing through the left chest cavity and fragmented.” A large copper fragment, a conical small copper fragment and, three small lead fragments were recovered from “the muscles behind left clavicle and muscles between it (sic) and the scapula.”

47.3.4 The results of the x-ray were (inter alia) -
Skull lateral view: “multiple fragments snow-storm

appearance seen in the neck, lower jaw and left shoulder.” Chest: multiple fragments seen [snow storm (sic) appearance] in left upper chest, left shoulder and left neck. Abdomen and Pelvis: “Snow storm (sic) appearance around left sacro iliac joint (multiple fragments).”

47.3.5 The body was tagged on the left ankle — “unidentified male, GZ 26”. It was clothed in “brown-white striped shorts with black belt size 32, a green-white t-shirt, blue-brown-white-green striped boxer shorts with round defect in left upper buttock.”

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According to the pathologist, “information obtained” was that the deceased was reportedly (sic) killed during operations by the security force” (sic). The cause of death was -

1. (1)  haemorrhage and shock and,
2. (2)  gunshot wound to neck and chest.

6. 47.3.6  UNIDENTIFIED MALE (GZ 38)

A post-mortem examination was conducted on this corpse on July 8, 2010. The estimated age, “based on x-ray findings and teeth”, was put at “between 16 – 19 years”. This body too “was discovered between 23rd and 25th May 2010 at Kingston Public Hospital by doctor on duty.” It was removed to Maddens’ Funeral Home “on instruction from Police for Post-Mortem examination.”

7. 47.3.7  According to the pathologist’s report, the body was that of a “5’ 11 (180cm) male, of slim built, with very short curly black scalp hair showing ordinary right angle trim on fronto-temporal area on both sides. Intermittently shaved left eyebrow. No beard and no moustaches.” Three (3) scars were identified, viz. —
1. (a)  a vertical linear scar 5cm length seen on left anterior mid arm,
2. (b)  a 4cm linear traverse (sic) scar seen on anterior lateral left mid thigh and
3. (c)  a 1.5cm scar seen on right mastoid region.

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Post mortem peeling of skin was present “here and there on the body.”

47.3.8 There were two (2) gunshot wounds —

1. “an entrance wound 0.4 x 0.3cm on right upper

anterior abdomen on epigastrium 54cm below top of head and 2cm from mid line without gun powder deposition.” The bullet “travelled through the abdominal cavity, left lobe of liver at the junction with right lobe, diaphragm, apex passing through left lung fracturing left posterior 6th rib and .... fragmented.” A large “copper jacket fragment” (sic) was recovered from the muscles on left lower scapular region and handed over to police. The base of the heart was found “completely shredded and pulpified.” The trajectory of the bullet was “upwards, backwards and to the left.”

2. an entrance wound on “upper anterior chest 30.5cm below top of head and 2cm from midline without gunpowder deposition.” The bullet “travelled through thoracic cavity fracturing right 1st rib passing through upper and lower lobe of right lung.” A “large gaping wound” was seen in the right posterior chest muscles around 6th rib measuring 6 x 25cm. Two (2)

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large lead fragments, one (1) small lead fragment and, two large copper fragments recovered from muscles on the right upper posterior chest were “handed over to the police.”

47.3.9 Three (3) tags were observed on the body – one (1) on the left ankle with the legend “Ground Zero 38, unidentified male” and on the left wrist, another, “GZ 38, 25-5-10. The right wrist bore a tag marked “Ground Zero 38, unidentified male”. The body was clothed in “white merino... blue jeans pants and blue belt – ‘TOM CRUISE’ brand (with) complex crest pattern seen on back pockets. Size 32. The deceased had blue underwear (boxer shorts) ‘FUBJOLD’ brand.” According to the pathologist, “from information obtained” this deceased also was “shot and injured during a shoot out (sic) between members of the security forces and gunmen in Tivoli Gardens.”

The cause of death, in the opinion of the pathologist, was -

1. (1)  haemorrhage and shock and,
2. (2)  gunshot wound to abdomen and chest.

47.4 UNIDENTIFIED MALE (GZ 41)
This body was reportedly “discovered May 2010 (sic) in the Coronation Market, Kingston by the Police.” It was subsequently “removed to Madden’s Funeral Home”, on their instructions, for a post-mortem examination to be done. The “severely charred”

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body was 42 inches (107cm) in length. Both lower limbs below the lower one-third of the thigh were found missing; so too were the left upper limb below the mid forearm, the right upper limb, from the lower one-third of the arm and, the cranial vault. Remnants of a penis were present. The lateral halves of charred clavicles were present on both sides. The thoracic and abdominal walls were burnt anteriorly and anterio-laterally, exposing their abdominal and thoracic contents, which were severely charred.

1. 47.4.1  The report states that five (5) copper fragments, one (1) copper jacket fragment and three (3) lead fragments, from the muscles over scapula, were recovered and handed over to Police. A large copper fragment was retrieved from the right upper buttock (the muscles under the fractured iliac chest). The fragments were handed over to police. It was estimated that the deceased was aged “above twenty-five (25) years.”
2. 47.4.2  The results of an x-ray done on the body were —
1. (a)  “Lower half of skull, neck and upper chest: a cluster

of fragments seen in left upper chest. Skull upper half

missing.

2. (b)  Pelvis and upper thighs: scattered tiny fragments in pelvis.”
2. 47.4.3  The pathologist found a tag on the right upper arm of these remains labelled “GZ 41” and on the left upper arm, “unid male,

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burnt body, Darling Street, D. Gayle, Denham Town Police, 25- 5-10”. No clothing was seen on the body.

47.4.4 The pathologist recorded -
“Brain corgulated (sic) and contracted. Soft tissues of neck

missing attached (sic) with trachea. On opening the paraboiled (sic) and contracted trachea no soot is visible. No visible soot in both main bronchi. Trachea is filled with coagulated blood. Thoracic contents exposed and charred. Abdominal contents exposed and charred.”

The cause of death was given as “gunshot wound to chest and

pelvis”.

5. 47.5.5  [The absence of soot or of “visible soot” may indicate that death

occurred prior to the corpse becoming charred (partially burnt).] Noteworthy Findings/Observations Of

Independent Observer Pathologist

6. 47.5.6  UNIDENTIFIED MALE GZ 7

Professor Cordner recorded that –

1. he “specifically asked if fingerprints had been taken and

was assured they had been and had been checked against

criminal records. No match was found.”

2. the apparent age of the deceased was “not assessable from

external examination” and the eyes also were “not assessable.”;

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3. the deceased had a short “goatee type” beard and moustache “black cane row planting” (sic), 10cm in length at back of neck” and “no sideburns”;
4. a “3.5cm almost square raised keloidal legion, presumably a scar in central R buttock, 9cm to R of midline”;
5. there was a gunshot entry wound to the “L upper temporal region, 6.5cm from the top of the head and 10cm from the anterior midline with (a) defect in shape and 0.9 x 0.7cm in size and a corresponding exit wound located in the R temporo-parietal region 6cm behind and above the R ear, 13cm from the vertex (sic) midline, 15cm from lateral R eyebrow.” The direction of the fatal projectile was “more or less across the head from left to right coursing slightly backwards”;
6. a femoral bone sample was retained and that
7. the corpse was partly clothed in a “white heavily blood- stained merino,” (with damage associated with “removal by

cutting,”) as well as a “white heavily blood-stained T shirt.”

47.7 UNIDENTIFIED MALE GZ 23

1. The apparent age was “not assessable”; nor were the eyes, because “orbital contents (were) sunken and largely absent.” There was also “marked decomposition with skin slippage and loss over chest, abdomen, thighs and neck.”

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2. There was a “gold coloured” ear stud in each ear lobe.

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3. Signs

1. “a gunshot entry wound to the head located in the L

mastoid region”;

2. a “crescentic abrasion 0.2 x 0.5cm between 4 and 8

o’clock”;

3. “complete disruption of the cranial vault and floor”

with haemorrhage not obvious due to decomposition;

4. the gunshot entry wound was to the “R lateral back” with an associated “crescentic abrasion 0.5 x 0.4 cm between 4 and 8 o’clock, the path of the bullet causing extensive transverse fracture just inferior to the

spinous (sic) of the scapula”;

5. “a projectile (folded copper jacket) and one other

copper fragment” were located in subcutaneous tissue over the scapula having travelled “from R back more or less directly upwards and superficially”;

6. the projectile, which caused an entry wound to the R lateral back, “nicked the lower margins of the 8th rib, coursing supero-medially through all lobes of the R lung continuing between the oesophagus and the thoracic/cervical space at the base of the neck and shredded the structures of the neck”;

of recent injury included

7. there was a “crescentic abrasion 0.4 x 0.3 cm between 2 and 4 o’clock” relating to a gunshot entry wound to the back of the left upper arm;
8. a femoral bone sample was retained and,
9. that significant projectile fragments were recovered

and retained.

He commented that “distinctive teeth” may enable identification and that although the deceased was “probably no older than 23/4... some care needs to be taken with this conclusion.” He associated the damage to the white T- shirt with gunshot wounds and “removal by cutting”.

8. 47.8  UNIDENTIFIED MALE GZ 29

Professor Cordner -

1. estimates the age as “>20 (probably greater than 23/24)”,
2. described the tattoo as being in the “outer R deltoid region:

(a) form of the cross with a circle replacing the top

projection of the ‘t’ ” and

3. states that a femoral bone sample was retained.
8. 47.9  UNIDENTIFIED MALE GZ 38

1. Professor Cordner found “decomposition established” as well as “patchy epidermal skin loss and sunken, largely decomposed orbital contents.”

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2. He too estimated the age of the deceased at 16 – 19 years “a conclusion based mainly on incomplete fusion of the lower femur.”
3. He noted unique features of “very short fingernails” which, “appeared bitten” and toenails “not cut”.

47.10 UNIDENTIFIED MALE GZ 41

Professor Cordner observed -

1. three (3)

1. on
2. on a.

b.

labels affixed to the body, viz. – the “R upper arm: ‘GZ41’ ”; the “L upper arm” -

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“unidentified male burn body Darling St D Gayle Denham Town Police 25-5-10”;
“ ‘GZ 41 Unidentified male burnt remains’ ” and “female (sic) GZ 41 25-5-10.” (sic)

c.
iii. that there was “no obvious soot visible on the inner

surface" of the “contracted parboiled trachea when opened” but that it was “filled with coagulated blood” and that there was no soot in the “R main bronchus”;

iv. a femoral bone sample and “a vertebral body” (sic) were retained;

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v. that the “charred body obliterated ability to assess” whether the (no fewer than two) gunshot wounds showed evidence of contact, close-range or intermediate-range discharge of firearms;

6. that within “severe limits of assessment”, no injuries caused by stabbing or cutting were apparent;
7. that the burns to the corpse were “probably post- mortem”;
8. that because there were “no signs of unfused epiphyses”, age should be put at “probably >24/25 years.”
9. that because they were incinerated, the following parts of the remains were found absent –
• ????  R and L lower limbs below the lower femurs
• ????  below mid L forearm
• ????  below lower third R humerus
• ????  front and sides of chest
• ????  cranial vault
• ????  medial half L and R clavicle
• ????  anterior abdominal wall and,
• ????  soft tissues (of the) face and neck
10. that regarding “dental (oral) characteristics”

“• L mandible 3 molar teeth present;

• R maxilla: 2 molar teeth present, broken 1st premolar;
• L maxilla: 2 complete molar, 3rd molar incomplete eruption (and)
• R mandible absent.”

2. These were “badly charred incomplete human remains” with

the “base of (a) penis and remnants of testes identifiable.”

47.11 In his opinion, in each of the five cases, the post-mortem examination done by the Government pathologist was

“satisfactory”.

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MISSING PERSONS

48. The remaining four (4) citizens reported “missing” since the ‘incursion’ are Dale Anthony Davis, Dwayne Edwards, Winston Purrier and Vincent Samuels. All four resided in Tivoli Gardens. All, when last seen alive, were in the custody or company of State Security personnel at locations inside that place. They may yet be presumed dead according to law. According to civilian witness statements, the circumstances preceding their individual disappearance are as follows -

Dale Anthony Davis
48.1 Dale Anthony Davis was born on June 13, 1993 to Ms. Dawn Brown.

Dale attended Operation Friendship School for slow learners. He was a student of National Hero the Right Excellent Marcus Mosiah Garvey, ON and read at Liberty Hall. Dale lived with his grand-aunt, Ms. Ivy Grant, aged sixty- plus, at Flat B, Building 15, Seaga Boulevard, Tivoli Gardens. Ms. Grant is a diabetic. She also suffers from heart ailments. Dale was her caregiver. Ms. Grant reported to Ms. Brown that on Tuesday, May 25, 2010, Dale was “taken ... out of her house while they (the Security Forces) were doing house to house search. The soldiers also told her that they were taking him to check him out”. Despite making checks at various places, including the National Arena detention centre, police stations, Madden’s Funeral Home and after viewing the photographs of deceased persons at the Tivoli Gardens community centre, Dale Davis has not been seen or heard of since.

[On July 15, 2011, a buccal swab was taken from Ms. Dawn Brown, mother of Dale Davis. A bloodstained swab taken from the body of an “unidentified

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male” deceased at “Ground Zero 23” (GZ 23) was compared with the swab taken from Ms. Brown. Statistical calculations by the Government Forensic Science Laboratory to determine maternity resulted in a 99.893% probability that Dawn Brown cannot be excluded as being “the mother of the source of the blood stain” present on the swab allegedly taken from the body of the “unidentified male” at “Ground Zero 23”. Therefore, according to a DNA report, the missing person, Dale Davis “cannot be excluded as being the source” of that blood stain.]

Dwayne Edwards
48.2 Mr. Edwards, a twenty-seven year old janitor, resided at Building 22, Seaga

Boulevard, Tivoli Gardens, a tower block. On Monday, May 24, 2012 at about 5:30 p.m., Mr. Edwards and his cousin Mr. Andre Smith, were seen in the company of policemen in the ground floor lobby of Building 22 where they lived. The police were heard telling both Mr. Edwards and Mr. Smith “to come with them upstairs to help them search”. Both men then “walked up the stairs with the police officers.” Shortly afterwards, shots were heard. At about 6:30 p.m. two policemen were seen carrying a body which was covered by a sheet. This sheet was recognized by a relative of Mr. Edwards as the sheet which had covered his bed. A foot and trouser leg protruded from the sheet. The relative recognized the leg of grey trousers and a foot of the “crepe” which Mr. Edwards had been wearing at the time he went upstairs with the police officers. About twenty minutes later, policemen brought another body downstairs. That body also, was wrapped in a sheet. (The corpse of Mr. Andre Smith, previously classified as a “missing person” and who was not seen alive after ascending the stairs, has now been positively identified by DNA.)

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Winston Purrier and Vincent Samuels

3. 48.3  On Monday 24th May 2012, Mr. Keith Patterson was at the house of his two

grandsons, Winston Purrier, a “farmhand” and Vincent Samuels, a gardener. Their home was situated at McKenzie Drive, Tivoli Gardens. Mr. Patterson, aged seventy-three, is practically blind. He can “only ... barely glimpse a little from the left eye”. He heard members of the security forces questioning his grandsons (aged eighteen, twenty-three and twenty-five years respectively) at the home and, accusing them of supporting “Dudus”. He then heard about four loud explosions and screaming. Later he was told by a neighbour that “soldiers shot and murdered my two grandsons (Mr. Purrier and Mr. Samuels) and brutally”. Neither of the two has been seen or heard from since.

4. 48.4  These cases of missing persons may be among the five (5) unidentified male corpses buried in paupers’ graves dug at the May Pen cemetery.

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MORE ON DETAINEES

49. Two members of the Tivoli Gardens football team were among the over one thousand (1000) detainees. One of them, (TG 1) participated in Jamaica’s 1998 World Cup football qualifiers. The other, (TG 2) is of a later generation. The experiences they relate, are not untypical of allegations made by detainees.

1. 49.1  TG 1 alleges that –

On May, 24, at the height of the ‘incursion’, he was on his way to retrieve his cellular phone which was being charged, when a family friend anxiously dragged him into her house for safety. He had been in her house for about two hours when he heard a knock on the door. After the door was opened, a soldier entered and started to carry out a search. Another soldier who was masked had a gun in one hand and a machete in the other, he said, and demanded that he come outside.

2. 49.2  He alleges further that when he reached the door “to go outside, the

soldier (who) came with the machete pushed the machete in my face, he wanted to put it in my throat. I held his hand to prevent the machete from going into my throat and I fell to the ground.” TG 1 says that he shouted to the soldier who was inside to come outside. That soldier “heard” and said to the other “no man nuh kill him, him a baller.” He was slapped four times in his head with the machete.

3. 49.3  He was taken out into the yard of the premises and made to kneel on the

ground. A soldier asked him “weh yu a do here — ?” (calling him by surname.) He replied “a mi phone me did a try go fah cause Mr. Seaga suppose fi call me.” Another soldier interposed: “him deh yah fi Dudus,

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him should a gone like the res’ a baller dem.” He alleges further that the masked soldier kicked him and used “the gun nozzle lick me in my ribs”. Another said: “the whole a unno a go dead off”. Yet another soldier riding on a passing jeep asked his fellows who were in the yard: “weh unno a do wid so much live bodies ?” The soldier who had searched the house comforted him: “Jus’ easy man. Mi a stay wid unno. Mi nah mek dem kill yu.”

4. 49.4  Later, with his hands bound, he was herded along with others to the

Tivoli Gardens Comprehensive High School campus. Along the way he asked one of the soldiers guarding him “weh unno a do dis fah ?” Came the reply: “a di orders weh we get. A kill den search so unno must tank God fi de soldier weh come inna di house.”

5. 49.5  Late in the day, he was taken to the old Seprod compound “placed in an

open area with gravel on the ground and bird filth on the ground.” He was “beaten by the police who said we ago dead same way”. About two o’clock next morning he was fed sliced bread and bottled water. With his hands still bound, he told a policeman that he wanted to urinate. He alleges that the reply was: “a nuh your pants, piss ina it”. Because he had no choice “I had to pee same place.” At about 11:00 a.m. later that morning, he was “given a tea that tasted like Milo” and at about mid-day, he was returned to an open area where he had been placed the evening before. Later still, he was photographed and other personal details recorded.

6. 49.6  TG 1 says that he remained in that open area until about 6:30 p.m.

when it started to rain. He identified himself to a policeman who had bawled out his name and who asked him: “who is the next baller ?”. Thereupon, he identified TG 2 and along with him, soon after 7:00 p.m.,

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was “taken in an open back police van along with other civilians and seven policemen to Vale Royal as instructed by Mr. Seaga.”

49.7 TG 2 says that –

He was at home in Tivoli Gardens on May 24 when he “heard a knocking on the door and a voice saying ‘unno come out of the house in five seconds with unno hand on unno head’ ”. All the occupants did and were promptly arrested. Later that night, soldiers and policemen “just start beat the whole of we wid dem gun. Them box me in my face and kick me up saying a dead mi fi dead, ‘bout me a baller.” Eventually, they were bussed to the Seprod compound where he encountered TG 1 in an open area, in the company of other detainees. They remained there up until about 2:00 a.m. next morning when they were moved into a zinc-roofed building to sleep. “It was all covered in pidgin (sic) droppings. The building had a zinc roof. We had to sleep on the bare dirt.” On Tuesday May, 25, the detainees were fed and their pictures taken. Upon his release in the night, he elected to go to Portmore “due to the fact that (he) was afraid to go home in Tivoli because bare police and soldier was over there”. He was transported to a bus stop in Waterford, St. Catherine where he was picked up by his sister. He remained at his sister’s until Sunday, May 30 when, because of information he had received, he returned home to find “the whole of my clothes thrown down on the ground, my door mash up and the glass them break out.” He continued: “About 4 weeks later, in June, about 6 o’clock in the morning, the police came beating down the door. I showed them my picture and explain that Mr. Seaga had called the first time I was detained and as a result I was released without detention papers. They said they did not care ‘bout that. I was taken to Mobile Reserve. My picture and finger print was taken. I was released in the

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night after I explain that I did not want to miss training. Richie, a policeman I know, took me home and at that time I was given detention papers” (which indicated that he had been formally released after “processing”.)

Complaints re malicious destruction of/damage to property; assault, looting etc.

50.0.0 The categories of complaint under investigation are listed at p. ante. The complaints suggest that in the purported exercise of Emergency powers, the State Security Forces —

1. subjected the civilians they encountered to indiscriminate

rough handling;

2. conducted a search for weapons, ammunition or other

contraband which “left no stone unturned”, particularly in

Tivoli Gardens;

3. were hardly concerned or sensitive about destruction of or

damage to real or personal property whilst carrying out the

searches which, amounted to a thorough “shake-down”;

4. required the occupants of houses and apartments to evacuate temporarily, under guard, whilst the searches were conducted; that in their absence or that of other residents, who for various reasons had fled from their residences (Tivoli Gardens in particular,) members of those Forces looted cash and other valuables, e.g. jewellery and small

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50.1.0

electronic items, treating such property as the “spoils of

war” and further that,
v. there was a noticeable lack of supervision, leaving the

troops and rank and file policemen to operate with carefree

abandon, thereby —
demonstrating the axiomatic truth that “when the ordinary laws framed for the suppression of wrong-doing and the protection of the well-doer, are, for a time suspended” the circumstances justifying their suspension are “almost sure to ... excite both fear and passion; and some injustice” and that “some cruelties will be certain at such times to be perpetrated.” (See pp. post.)

The following nine (9) complaints, randomly selected, are generally illustrative. (See too the dormant complaint made re the Tivoli Gardens marching band and drill team — p. ante and p. post.)

Complaint No. 1

A restaurant cashier alleges that on May 18, 2010 she locked up her home in Tivoli Gardens and went to a rural St. Ann district to visit her mother. On May 22, 2010, as tension heightened, her brother joined her there. She returned home on May 29, 2010 and found her front door split into two pieces. The glass at the top of the door was shattered. She entered the house and found it ransacked. Clothing was thrown all over the floor and furniture removed from their original position. She discovered several gunshot holes in the freezer section of her refrigerator and one in the lower section of it. Her washing machine also was punctured by gunshot holes to the back of it. A glass table

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50.1.2 N.B.

50.1.3

Occupation of Tivoli Gardens by State Security Forces practically began on the night of May 23, 2010. It may be answered or argued that persons other than members of those Forces had the opportunity, during the absence of complainants, to have caused the damage and/or loss complained of. But those grievances have been investigated and considered in light of the multitude of similar complaints of abuse made against members of those Forces and which purport to have been witnessed and are corroborated by others. This category of complaints suggest a pattern of misconduct by the Forces.

Complaint #58

The complainant was a General Helper employed to the Kingston and St. Andrew Corporation. On May 24, 2010 she was at home with her son, aged 29, when three police officers came and “tear off (her) front door” and asked her “who and yu in the house?”. Before she could answer, the police grabbed her son and pulled him downstairs. She saw a soldier use a stick to hit her son across the face. Soldiers pulled him into a room. She heard him crying out for “Murder!” One of the policemen returned to her apartment and just started to “fling down”

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was shattered into pieces; so too the mirror of her dresser. Her television set was damaged. There were also gunshot holes in three sets of metal louvre blades. An entire section of the wall at the back of her apartment was riddled with bullet holes.

50.1.4

her things on the floor. She alleges that the police threw her electric fan, blender, wardrobe and chest of drawers down on the floor causing severe damage to them. They also tore down a board partition.

Complaint #158

The complainant is a disabled cosmetologist. She lived alone. She walks with the aid of two metal crutches. She alleges that on May 24, 2010 she left her house and went to her neighbour’s, because she was afraid. Whilst there, police officers and soldiers entered, confiscated cellular phones and ordered all present to sit on the ground. She could not do so because of her disability. Shortly thereafter, all females were ordered out of the house. Being fearful for her safety, she said, she did not return home but went to stay with a friend who lived on Derrick Path. She alleges that on Thursday, May 27, 2010 when she went back home, her entire house was in disarray. All her hair products were smashed and mixed with cement and grout, on the floor. The dining room and her bedroom were “covered in blood”. There was a trail of blood leading from the dining room to the verandah. Her bed and mattress were totally destroyed and covered in blood. There were several bloody spots on her bedroom wall. All the tiles in her bathroom were dug from the wall and littered the floor. Her toilet tank cover was broken. Her houseware, clothing, utensils and other personal belongings were strewn all over. The sum of One Hundred and Fifty-Two Thousand Dollars ($152,000.00) in savings was missing from a chest of drawers; stolen.

Complaint No. 290A

The Complainant is a twenty-one year-old Rastafarian higgler who resides in Tivoli Gardens. He lives with his partner, their one-year-old son and three step-

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50.1.5

daughters, ranging in age from four to eleven years.

6. 50.1.6  On Monday May 24, 2010, he was at home with his family at about midday when he began to hear gun shots.

At approximately 3.00 p.m., he heard a voice shouting from the ground floor of the multi storey building: “Uno come out! Come out and throw down the gun dem!” He peeped through a window and saw soldiers dressed in army green uniforms, and bearing high powered weapons. “Their faces had on war paint and handkerchief around dem mouth, like a cowboy thing”, he says. He opened his door but as he pushed open a metal grill he was fired on by soldiers from downstairs. He cried out “ how uno a call we out and wan kill me? Murder! Murder!!”.

7. 50.1.7  Fearing for his life, the complainant says he rushed back into his house.
8. 50.1.8  Thereafter, several gun shots were fired. The soldiers shouted “If uno don’t come

out we ago bomb uno out!” The complainant’s partner screamed out: “me a come out! A mi and mi pickney dem! Don’t fire; no shoot!” The complainant came out with hands on head after his partner and children had exited the house. They were all searched and their cellular telephones confiscated. They were placed in an apartment with other residents. Eventually males were separated from females and children.

9. 50.1.9  He was taken to an apartment on the building with approximately twenty other

men. Whilst being made to lie on his stomach, face down and shirtless, he got burnt on his right hand and chest “from the spen [sic] shells fired by the soldiers who were targeting men downstairs.” During the night, he was verbally abused by a soldier who struck him on the temple with his rifle butt.

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50.2.0 Next day, the complainant and the other men were removed from the apartment

to Justine Plaza and placed under a guard of five policemen, all armed with rifles. One of them “came from behind and kicked my legs and I fell on the ground and injured my left elbow and ribs.” Another policeman fired several shots then shouted “Run! Uno run!”” He did not because “I know if I run they would shoot us.”

50.2.1. The complainant and others were ordered to clear road blocks on Spanish Town

Road and to pick up dead bodies. He “picked up the first dead body at Mr. Myers business place and took it to Mother White bridge and placed it on a white truck with pure dead people.” He had returned to Justine Plaza after clearing road blocks when a soldier came up to him and said “him no like rasta, uno a battyman and everything ungodly. He then took out a white pill and say ‘this no make me feel no pain’ and then took out a Rambo knife and proceeded to cut off my locks.”

2. 50.2.2  The complainant has been a Rastafarian for the past seven years. He states:

“After dem trim me I felt very angered, depressed; my knees felt weak and I wanted to cry. For a moment I wanted to lash out and hit him, but if I did dem wud a kill me and me have my youth fi live for.”

3. 50.2.3  Later he and other men were ordered to board a white Coaster Police bus. While

entering, a policeman struck him on his right knee with a baton. “The bus was filled with (other male detainees.) Some were sitting in other man lap. Nobody wanted to stay behind for fear of being killed by the security forces.”

4. 50.2.4  They were taken to Seprod and he was made to “walk on (his) knees for about an

hour.” He was kicked in his right side and region of the kidneys by a policeman, making him writhe in pain.

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5. 50.2.5  It started to rain. He was then taken to “an old run-down, leaking building that

had a foul odour.” There he was offered no food; only water. Later he was transferred to another building which did not leak. He slept on the “cold concrete” that night.

6. 50.2.6  The following day he was taken to the National Arena where he was finger-

printed and photographed. He was served a cooked meal and was provided with a bed and bathroom facilities. Two days later, at 4.00 a.m., he was released and given a detention certificate.

1. 50.3.0  Complaint # 348.

The complainant is a thirty-nine year-old chef who resided at Building 5, Sangster Crescent, Tivoli Gardens. On May 25, 2010 at about 1:30 p.m., she was at home with her children and other family members, huddling in fear, she says, because “loud explosions sounding like bombs and gunshots were heard in the area.” According to her, “ the door was opened and I heard soldiers who were seen before dressed in uniform with long guns, shouting ‘Residents of Building No. 5 come downstairs!’.” She alleges that, “two soldiers came into the house and stand on the chairs and began to beat my brother and the rest of the men on their heads with the butt of their guns. The soldiers asked: “Unoo never hear say fi left Tivoli! ?. We a go kill all of you in yah!” She said soldiers damaged the windows by hitting them with their gun butts saying, “mek unoo Prime Minister buy them back.”

2. 50.3.1  A total of fifteen cellular phones and a number of cameras were confiscated. None of them has been returned.
3. 50.3.2  The occupants were ordered outside to sit on the ground whilst the flat was searched. They were allowed back in after 7.00 p.m. and found the place

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thoroughly ransacked. Pieces of furniture were maliciously damaged, for no apparent reason. Loss and damage was estimated at $320,000.00.

1. 50.4.0  Complaint #484.

The complainant is a twenty-eight year-old plumber and rastafarian who resides at McKenzie Drive, Tivoli Gardens, Kingston 14.

2. 50.4.1  According to him, on Tuesday May 25, 2010, he was taken away from his

mother’s house by members of the Security Forces. While being taken away, he alleges, “a police officer slapped me twice with a machete across my back close to my side; my skin was not cut but my skin was wailed.” He was taken inside the quadrangle area of the Tivoli Gardens community centre and put to lie on his belly. Sometime later, he was moved to the Seprod compound. Along the way, a soldier used his helmet to strike him on the head.

3. 50.4.2  The complainant alleges that while at Seprod, he “was made to sleep on the

ground which got wet by the rains which fell overnight.” He continued: “While at Seprod I was kicked in my mouth and my two front teeth are shaking. I was kicked because the soldiers found out that I had a cell phone after they seized all the other cell phones.” Next day, he was taken to the National Arena where he was detained up until Friday, May 28, 2010. His Nokia camera phone has not been returned to him.

4. 50.4.3  During his detention he ate only bread and drank water. He could not eat the meat provided, due to his religious beliefs.
5. 50.4.4  Upon his release, he went to stay with a cousin at East Road, Waltham Park,

Kingston 11, for some five days returning to Tivoli on June 3. He was denied entry to his house. He returned again next day, this time being allowed to enter. Thereupon, he discovered that “the door had been cut out in the region of the

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lock.” The ceiling had been ripped out. The speaker boxes of his component set had been cut open. A radio had been pulled apart. A television set was also damaged. A settee and mattress were cut open. A “brand new” pair of Timberland shoes was missing.

1. 50.5.0  Complaint #516

The complainant is a thirty-three year-old hairdresser who operated her business from her home at Building 21, Seaga Boulevard, Tivoli Gardens Kingston 14. She also ran a stall in the Coronation Market.

2. 50.5.1  On May 24, 2010 at about 4.00 p.m., she was sitting on a settee at home with

her three-year-old daughter when her door “fly in and then shattered into pieces.” About seven soldiers now stood at the entrance door. “They asked me several times who I was home with”, she says. “I responded telling them ‘no one’. Shortly after, a soldier said ‘if me eva cum si nuh man in deh, yu a go si weh mi du wid yuh’ ”. They forcefully ordered her to go to the first floor of the tower block.

3. 50.5.2  According to the complainant, she, the toddler and twelve other residents were

detained by soldiers in another flat for three days under heavy guard. On the third day, at her request, she was escorted back to her home by soldiers to fetch her electric fan.

4. 50.5.3  On entry, she found furniture and other items smashed or badly damaged. She described the scene and gave details of loss and damage suffered during her

absence:

5. 50.5.4  A three-piece glass dining set lay shattered on the floor. A flat- screen television

set had two gunshot holes in it. Another television set connected to a DVD player was also damaged. So too was a chest of drawers, all drawers having

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been taken out and broken into pieces, leaving only the frame. All three mirrors of a dresser had been smashed by gunshot.

5. 50.5.5  Hair products used in her hair-dressing business were also shot up. Items used

for grooming her baby were destroyed and strewn on the floor. Clothing belonging to her daughter, her “baby father”, two other children and herself were also shot up. A four burner gas stove was also damaged by gunfire.

6. 50.5.6  There were a number of items missing including a Sony digital camera — “a gift

from overseas” which had been stored in the dresser. A 17” laptop computer belonging to her fourteen-year-old son was also missing. So too were three cellular phones — a Blackberry, a Samsung and a Motorola brand. Savings of $88,000.00, in five-hundred and one-thousand dollar denominations was looted from a dresser drawer. A saving pan with coins was also missing.

7. 50.5.7  The metal window of her bedroom and bathroom, the walls of her bedroom,

bathroom, kitchen and living room were shot up. A face basin was broken into several pieces apparently by gunshots. The lid and bowl of her toilet were also damaged, apparently by similar means.

8. 50.5.8  There were a number of other items missing. The total cost of replacing lost or damaged items is estimated at $920,000.00.
9. 50.5.9  The complainant alleges also that she suffered loss estimated at $220,000.00, as a result of the fire at the Coronation Market. The fire completely destroyed her

stock of escallion, onions, garlic, pepper, tomatoes and thyme, she says.

50.6 Complaint # 559

The complainant is a small businesswoman who operated a “registered” game shop.

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50.6.1 She alleges that along with her children, she left their Tivoli Gardens home

securely locked up on May 17, 2010 to stay with an uncle in rural St. Andrew, because she feared for their safety. She returned home on June 2, 2010 and found her front door “kicked” off its hinges. There was evidence of a boot mark on the door. Upon entering, she saw all the family’s clothes littering the floor. Her refrigerator door was twisted and the handle of the freezer section broken off and lying on the floor. As a result, the refrigerator door could not be closed. All food items were now spoilt. Four panes in the “storm window” of her children’s rooms were badly damaged. All her settee cushions had been ripped open, apparently by a sharp instrument.

3. 50.6.3  There were several items of personal property missing, including her component set, liquor, cologne, a digital camera and jewellery.
4. 50.6.4  She had secured all contents of the game shop before leaving on May 17, 2010.

However, on her return, she found that that entrance door also had been forced open. The coin boxes for each game had been prised open and the contents stolen. All the games along with their hard-drives were missing, leaving only the cabinets in which they had been stored, she says.

50.7 Complaint #898

The complainant’s wife was admitted to the Kingston Public Hospital in early February 2010. Since that time their home in Tivoli Gardens had remained locked-up. He alleges however, that upon returning home on June 18, 2010 and on opening his door he saw a glass table smashed. So too were his bedroom and kitchen windows and dresser. His 15 cubic ft. refrigerator was shot up. A

plyboard partition in the house was also destroyed.

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BSI’S CRIMINAL INVESTIGATIONS

1. 51.0  Criminal investigations into allegations of atrocities committed during the ‘incursion’, or ‘siege’ made against members of the JCF and the JDF, have been conducted by the BSI which was the JCF Division charged with investigation of matters which now properly come under the purview of INDECOM. The BSI functions are now subsumed in the INDECOM remit.
2. 51.1  The BSI collected witness statements from JCF personnel and civilians. The former detail pre-‘incursion’ meetings to settle matters relating to strategic and tactical plans both for the arrest/capture of Christopher Coke and taking control of Tivoli Gardens, held between the JCF High Command and senior officers of the JDF. There are accounts, mainly from low-ranking policemen (ISCF personnel in particular), relating hostile encounters with illegal snipers and the origin of the fire which severely damaged the Coronation market. The civilians narrated accounts of Coke’s reputation as crime boss and his prior criminal activities in West Kingston. Their accounts also relate Coke’s movements on May 24, in the company of illegally armed men, although he himself is said to have carried no weapon.

52.0.0 The JDF and its stance on the OPD/BSI investigations
52.1.0 To a considerable degree, the delimiting provisions of the (Interim)

Act have operated as a check on the extent of the Public

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Defender’s ‘Tivoli’ investigations. By reason of the provisions of S.13(2)(b)(ii), those investigations have been greatly impacted by an ipse dixit of the JDF which may be summarized as follows:

At all material times the Government required that its members be deployed in support of the JCF and its auxiliaries in—

1. (a)  apprehending the fugitive Coke, and
2. (b)  wresting control of West Kingston (in particular Tivoli Gardens and its environs,) from armed combatants or other unlawful elements;
3. (c)  that it got the job done, sustaining one fatality, personal injuries and damage to its materiel but, did no wrong;
4. (d)  that in fact, (very serious allegations to the contrary notwithstanding,) its manoeuvres were surgical and antiseptic.

52.1.1. In both West Kingston and, the assault on the home of Mr. Keith Clarke, operations were spearheaded by the JDF. For operational purposes, JCF and ISCF personnel were absorbed or integrated into the JDF ranks. Regarding the former operations, a JDF catalogue of its lone fatality, injuries sustained by army personnel and damage to equipment is attached as Appendix 12.

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[N.B. —

1. The circumstances of the soldier’s death, the infringement of

his right to life and the Government’s obligations to him call to mind the obiter dicta in a decided case — R. (on the application of Gentle) & Anr. v. The Prime Minister & Ors. (2008) (UKHL) 20; (2008) 1 AC 1356; (2008) 3 All ER 1 (concerning deployment of British troops in the Iraq war) viz.—

“ Those who serve in the armed forces do so upon the knowledge that they may be called upon to risk their lives in the defence of their country or the country’s legitimate interests and that the ... State’s duty to protect military personnel should be viewed in light of the characteristics of military life, the nature of the activities that they are required to perform and of the risks to which they give rise.” per Lord Hope.]

2. The JDF stance is to be contrasted, inter alia, with

(a) its attitude regarding similar investigations in respect of earlier operations in the said same Tivoli Gardens (of 1997 and 2001) and/or

(b) with respect to the Keith Clarke operation, as it may be called.

In those instances, “witness” statements were or have been collected by the BSI from military personnel involved. In fact, according to the BSI, the JDF had always cooperated fully, in relation to its investigation of cases of killings in which the JDF was implicated.]

2. 52.1.2  In the result, the JDF was not at all eagerly forthcoming in relation to endeavours by the BSI (to say nothing of the Public Defender) to have its members answer questions or provide accounts of the execution of its role in the West Kingston operations; in particular the proximate circumstances of the killing of seventy-six (76) civilians.
3. 52.1.3  It has neglected or refused to comply with requests or entreaties from the BSI to cooperate with its investigations. It was implacable in its insistence that that cooperation be “evidence-driven”: that it must first be informed of the crimes and/or other unlawful action of which its members are accused or are suspected, before any or any due compliance. Initially, it refused or neglected to deliver up weapons as and when required for the purpose of ballistic testing.
4. 52.1.4  That intransigent JDF posture is illustrated by a letter dated January 10, 2011 to the BSI from Lieutenant Colonel Patrick A. Cole (for the Chief of Defence Staff,) a true copy of which is attached hereto as Appendix 13. The letter purported to express a readiness “to put mechanisms in place to ensure that the sterling cooperation which ... existed between the BSI and the JDF is continued.” Nevertheless, it persisted with requests for “specifics of any allegation made against members of the JDF, so that these allegations may be noted and appropriate (sic) the

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assistance given to the BSI in regards (sic) to their investigation of any allegation made.” The letter repeated an earlier “request for the BSI to state the following:

1. ...the allegations made against members of the JDF;
2. the crime being investigated;
3. the place it is alleged to be committed;
4. and also the date and time of the allegation.”

52.1.5 This letter elicited a prompt response to the Chief of Defence Staff from ACP Gauze, then the Officer Commanding the BSI, (attached hereto as Appendix 14.) The ACP’s letter laid out the basis of the BSI investigations and the necessity for forensic ballistic examination of relevant JDF weapons. It directly addressed the JDF’s “evidence-driven” paradigm thusly:

“... the position taken by the BSI is that in execution of (its) mandate, it is entitled to have access to any and all firearms alleged or suspected to have been used in the course of any operation, particularly where death results, for ballistic examination and comparison in order to determine whether or not bullets discharged from any such firearms caused or contributed to the death of anyone. In these circumstances it is our view that for these purposes our requisition for access to relevant JDF weapons is sufficiently, ‘evidence-driven’, if, as happens to be the case, there are allegations, or reasonable suspicion exist (sic) that bullets discharged by JDF personnel may either have proven fatal or otherwise inflicted injury.

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Moreover, addressing the content of (Appendix 13 ), we consider it quite adequate for the legitimate purpose of our investigation to inform you that the allegations we are investigating against members of the JDF as well as the JCF is (sic) that bullets discharged by them on and in the week of May 23, 2010 in Western Kingston may have caused or contributed to the death of persons. The ballistic examination and comparison will of course, engaged (sic) bullets or fragments recovered from the corpses of the deceased during the autopsies as wells (sic) as spent shells recovered from various scenes. It is absolutely essential therefore that the firearm examiners be allowed access to such firearms as may be described by them at the conclusion of phase one (1) of the agreed Protocol for the Examination of the Tivoli (and related) Events.”

6. 52.1.6  The BSI’s position was reinforced in another letter to the Chief of Defence Staff of January 14, 2011 (Appendix 15 ) which reminded him that –

“The protocol for the examination of the weapons was already agreed on

by the Ministry of National Security and the concerned parties” who, certainly included the JDF.

7. 52.1.7  That BSI letter (Appendix 15 ), overtook another from Lieutenant Colonel Cole to ACP Gauze, hand-dated January 13, 2011 (Appendix 16 ) and received after delivery of Appendix 15 which, (in all the circumstances) curiously suggested that the–

“... tone of (the letter of January 11) seems to indicate that you might have misinterpreted the tenor of the letter dated January 10, 2011 to mean that the JDF was unwilling to cooperate in this matter. This is to categorically state that this is not the case.”

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plainly evidencing, as it did, a shift, softening or wavering in the JDF posture.

8. 52.1.8  That letter (Appendix 16), it will be observed, actually now suggested a procedure for examination of JDF weapons.
9. 52.1.9  Quite notably also, in the letter of January 10 (Appendix 13 ) the JDF had maintained its months-long hesitation or refusal to furnish the BSI with “the names of all JDF persons involved in the (West Kingston ) operation” contending that -

“...because of the nature of this operation the entire Force was involved in the operation. To fulfil (the BSI’s) request would be to send the entire list of personnel in the JDF. We are accepting the fact that this could not have been your intention so therefore we are requesting that this request be more specific.”

1. 52.2.1  But then intriguingly, in his letter of January 13 (Appendix 16) suggesting the ballistics examination regime, Lieutenant Colonel Cole stated –

“To achieve this aim (of ballistic testing of JDF weapons) I have affixed to this letter a list of the soldiers who fired their weapons and the serial numbers of the weapons so used.”

2. 52.2.2  In the circumstances therefore and, because of the vacillation exhibited, it becomes highly desirable that the JDF’s bona fides, in relation to the list eventually handed over, inter alia, should be rigorously tested.
3. 52.2.3  Two other material issues –

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i. the use by the JDF of mortar ordnance and,
ii. the tactical assistance afforded by overflights of United

States of America Department of Homeland Security

surveillance aircraft
have left the JDF mired in controversy, due largely to conflicting official responses.

4. 52.2.4  i. The mortar ordnance

The mortar is an indirect fire weapon which fires explosive projectiles (known as “mortar bombs”) at low velocities, short ranges and high-arcing ballistic trajectories. It is typically muzzle- loading.

5. 52.2.5  Initially, public pronouncements by the JDF in reply to insistent allegations by Tivoli citizens that “bombs” were trained on the community, were less than frank or, obfuscatory.
6. 52.2.6  In the face of widely publicized allegations by residents of Tivoli Gardens that the community was “bombed”, no candid admissions were made by the JDF. In fact, a high-ranking military spokesman has been reported as having declared publicly that he was “unaware” of it.
7. 52.2.7  But following upon publication of news reports that based upon facts coming to light through USA information access facilities, official USA sources had confirmed that the JDF had indeed fired mortars, those admissions came in early June, 2012. In a Press

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Release dated June 7, 2012 under the rubric “JDF CLARIFIES U.S. CABLE REPORT” (Appendix 17) the Military confirmed the use of mortars. The release continued –

“Mortar rounds were fired into open areas as part of a diversion. At no time were persons or buildings targeted. This diversionary tactic created confusion and disorientation among the entrenched gunmen, and allowed the JDF to use bulldozers to breech the barricades and enter the community.

The mortar rounds that were fired were well targeted and directed and the JDF is satisfied that the use of these munitions was not only accurate and effective, but justified and necessary in order to achieve the operational objectives.”

According to the JDF, the Press statement was issued –

“...given the potential for speculation and misunderstanding surrounding this matter ...”

52.2.8 In view of this surprising development, the Public Defender, (following up on earlier telephone conversations) wrote to Brigadier Rocky Meade, Deputy Chief of Defence Staff by letter dated August 23, 2012 (Appendix 18) formally requesting that he provide information both in relation to the West Kingston ‘incursion’ and the killing of Mr. Keith Clarke regarding -

a. “... precisely what were the types of incendiary devices (mortars or other) discharged, as well as the tactical nature, targets and strategic objectives of their discharge” (Appendix 18, p.2, sub-para. iii.) and,

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b. “the reason why discharge of these devices was thought to be appropriate.” (Appendix 18, p.2, sub-para. iv.)

52.2.9 A JDF response came through Captain C. A. Crooks (for the Chief of Defence Staff) in a letter dated August 28, 2012 (Appendix 19.) Not foregoing its ubiquitous reliance on the (Interim) Act, S.13(2)(b)(ii) and, after noting, gratuitously, that “the questions in your letter have already been addressed in the public domain”, the replies to the requests at a. and b. above were stated as follows –

Re. a. :

“The types of incendiary devices that were used were mortars. These mortars were used as a diversionary tactic with the aim of confusing the highly armed gunmen who were targeting the troops including the manning of barricades which were erected to prevent the security forces from entering Tivoli Gardens. The use of these mortars was supervised by highly trained and competent JDF personnel who ensured that the mortars were targeted at open areas, thus minimizing the possibility of casualties.” and,

Re. b. :

“The use of these devices was thought to be appropriate based on the information which suggested that there were hundreds of armed gunmen in West Kingston prior to the entry of the security forces. In addition to distracting and creating confusion among these highly armed gunmen, it minimized the potential for loss of life among the civilians and also the

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security forces who were facing direct gun fire and the very real possibility of being ambushed at rigged barricades.”

1. 52.3.0  Again, it will be observed that Appendix 19 alleges that the “armed gunmen” were in “West Kingston”, not the particular locales of Tivoli Gardens and Rasta City where, only, the mortar munitions were targeted; undoubtedly.
2. 52.3.1  (Cf. the “information” regarding the mass of “hundreds of armed

gunmen in West Kingston” (Appendix 19) and the “intelligence” which “indicated that there were significant numbers of heavily armed gunmen massing inside the community” of Tivoli Gardens (Appendix 17) and, regarding the whereabouts .of ‘Dudus’, leading to the assault on the Keith Clarke household. The former expression is comparatively banal whilst the latter is more imposing and implies or suggests a high level of sophistication. But how reliable was the substance of either ?.)

3. 52.3.2  As regards the killing of Mr. Clarke, the letter stated that the issue of the use of mortar bombs did not “relate to” his death.
4. 52.3.3  But the veracity of the JDF’s assertions that the mortar rounds —
1. were “fired into open areas”;
2. were “well targeted and directed” and,
3. that “their use was accurate and effective, ... justified and

necessary”

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may be challenged on the basis of irrefutable evidence of the seriously deleterious discharge of ordnance described by Tivoli residents as “bombs”.

52.3.4 In particular —

i.

at least one related killing is directly attributable to the discharge of an explosive device resulting (according to autopsy findings) in —

1. thirteen penetrating lacerations, including one “rectangular shaped penetrating laceration 1.5 cm x 2.5 cm seen on top of (the) fronto-parietal region...”, the projectile penetrating “the underlying tissues, perforating the skull cap” and lodging on the “dura on left parietal lobe.”
2. haemorrhage and shock and,
3. a perforating shrapnel wound to the abdomen;

(No evidence of gunshot trauma was reported by the pathologists in relation to this killing)
autopsy reports also disclose injuries which may have been inflicted to the bodies of three (3) other related deceased by exploding rounds;

ii.

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iii.one survivor “felt a force lift (her) into the air” rendering her unconscious;

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iv. a number of dwelling houses (and all contents) was completely destroyed by fire sparked by mortar rounds, (members of the Security Forces allegedly dismissing appeals to summon the Fire Brigade) and, a coop of tame pigeons standing inside a yard, was completely destroyed, killing birds owned by an occupier who had fled as the ‘incursion’ drew near;

5. the “well targeted and directed” aim of mortar rounds discharged into “open areas” included a narrow cul de sac in which an expensive high-end motor truck reputedly the property of Christopher Coke was burnt down to the frame;
6. the related killing, burning of the houses, pigeon coop and vehicle, all took place in close proximity, some distance removed from the barricaded entrances to Tivoli Gardens and,
7. a particular area of Levy Path/Chang Avenue, i.e. deep inside Tivoli Gardens and in close proximity to a reputed residence of Christopher Coke, was the area or vicinity at which mortar bombs were targeted, mainly; that the high-end motor vehicle was burnt to the frame; that the related killing at i. above took place and that four houses and a small grocery shop were burnt to their skeletal concrete walls. (Was that area specifically targeted by

reason of “information” gleaned ?. Or by some species

of “intelligence” ?.)
52.3.5 (A catalogue of persons and property impacted by explosive or

52.3.6

incendiary devices during the Tivoli ‘incursion’/siege is attached as Appendix 11.)

The JDF in an unsolicited follow up letter dated August 31, 2012 (Appendix 20) contradicted its own response at a. above, now claiming that the type of mortar rounds discharged “were explosive and not incendiary.” Be it noted however, that the fires reported (as regards which there is abundant evidence) were ignited by mortar bombs.

The controversy surrounding ordnance use is fuelled further by allegations of “something” falling from the sky “followed by a loud explosion” and of a device described as a “grenade” being “thrown” on a house igniting a fire which spread to others.

ii. USA Homeland Security surveillance

The Public Defender’s letter at Appendix 18 also sought information from the JDF regarding —

a. “the nature and effect of assistance at material times which the JDF derived from the surveillance flights relating to general imagery communications or otherwise and,

52.4.0

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b. “whether or not the JDF is in possession of surveillance footage” (in which case, a viewing of that footage was requested).

1. 52.4.1  The reply at Appendix 19 stated — Re. a. :

“A United States (US) surveillance aircraft was deployed over the area of operation in West Kingston with a view to providing the JDF with general imagery assistance and communications during the May 2010 operations. This move was designed to gather information to assist the safe movement of the troops” and,

Re. b. :

“The JDF is not in possession of any useful footage from the US surveillance aircraft as due to technical challenges no usable imagery was obtained that could be effectively utilized by the JDF”.

2. 52.4.2  The Public Defender resists all temptation to comment on the assertion relating to “technical challenges” but will say that whatever may have been the perceived (or intended) tactical advantage or, justification for the use of mortar rounds and or heavy explosive devices in such a densely populated residential area, its appropriateness requires close judicial evaluation. Forensic scrutiny would also help to determine how the aircraft assisted “communications” as well as the “information” gathered, (if any) and as regard which, the JDF has volunteered nothing. (Perhaps its silence may be due to “national security” considerations.)

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52.4.3 At all events, having regard to –
A. the distinction between the types of mortars identified by

the JDF in Appendix 20, i.e. between the explosive and

incendiary variety;
B.the conflicting claims concerning which type was

discharged during the ‘Tivoli’ operation;
C. the irrefutable evidence of death, injury and damage caused; D. the omission or initial failure on the part of the JDF to own

up to the use of mortar rounds, followed, belatedly, by conflicting admissions, prompted or provoked by contrary information being made public and,

E. allegations of the use of munitions other than mortar rounds,

there is reasonable if not great doubt regarding the explosive devices actually employed by the JDF during the ‘Tivoli’ operation.

52.4.4 The question may therefore be posed: Putting the best face on their responses as recounted at Re. b.: (p. 109, ante) and at Re. a.: (p. 109, ante,) in the planning and moreso the execution of its manoeuvres, (particularly those involving the use of mortars,) did the JDF personnel really balance concern for the safety of its members with the duty to prevent injury, damage or loss (“collateral damage”) to innocent civilians ?. In this respect, the dicta of Lord Hope, a leading appellate Judge, in R. etc. & Anr. v

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52.5

The Prime Minister (op. cit., p. 102, ante) provide a timely reminder of the characteristically risky nature of volunteer military life and service.

Accountability of Chief of Defence Staff and Police Commissioner

In relation to both the West Kingston and Keith Clarke operations, the Public Defender submits that the heads of the State Security Forces, the Commissioner of Police and the Chief of Defence Staff, (since retired) and other senior personnel concerned, should be required to testify about their oversight of the operations, before a thorough-going judicial enquiry. The respective roles of those heads in the planning and execution of both operations require to be examined in line with the modern trend of official accountability and transparency as well as for historical purposes.

Obviously, the same is to be said of the Prime Minister, Minister of Defence and Chairman of the Defence Board of the day, Mr. Golding, as well as the erstwhile Minister of National Security, Mr. Nelson. [As respectfully submitted later in this Report, a duly constituted commission of enquiry is the only appropriate forum.]

Recommendation for ‘alteration’/amendment of The (Interim) Act

Having regard to all the foregoing and in accordance with the (Interim) Act, S.16(11)(b), the Public Defender urgently

52.6.0

52.6.1

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recommends that the provisions of S.13(2)(b)(ii) of the (Interim) Act be “altered” or amended, expressly to exclude investigations related to allegations of infringement of any constitutionally protected right or freedom or, any criminal action.

52.6.2 For there appears to be no or no rational or logical basis upon which to circumscribe the Public Defender’s remit in relation to those two areas of investigation, as presently obtains. Moreover, the projected alteration or amendment would —

1. re-affirm the supremacy of the Constitution as well as the subordinate status of “service” or Military law, procedures and practices;
2. shore up the protection of fundamental rights and freedoms, (in particular the pre-eminent right to life) as well as deter criminal conduct;
3. promote respect for and adherence to the JCF Policy (rules of engagement);
4. strengthen democratic governance.
5. enhance the viability and effectiveness of the Public

Defender and,

6. further demarcate and distinguish the roles of two

complementary commissions of Parliament — INDECOM and the Public Defender.

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53.0.0 THE KILLING OF MR. KEITH OXFORD CLARKE

1. 53.1.0  The Public Defender’s investigation into the circumstances surrounding the killing of Mr. Keith Clarke have at all times been coupled with that being conducted in respect of the West Kingston/Tivoli ‘incursion’. The two events are inextricably connected by one stated common objective: arrest of the fugitive Christopher Coke.
2. 53.1.1  Mr. Clarke was killed in the early morning of Thursday, May 27, 2010 at his home situated at 18, Kirkland Close, Red Hills P.O., in an operation led by the JDF. He was aged 63.
3. 53.1.2  The ostensible objective of the operation was Coke’s capture.
4. 53.1.3  According to military “intelligence”, ‘Dudus’ was hiding out in that house, along with no fewer than seven “heavily armed bodyguards”. In order to prevent information leaking, the troops involved were briefed at virtually the last minute. Details of the mission were given to them later still. As with the West Kingston operations, instructions/briefings appear to have been given and

information disseminated on a strict “need-to-know” basis.

5. 53.1.4  Mr. Clarke was a highly respected citizen and chartered accountant. He was a partner in a reputable firm of accountants and auditors. His widow is a Regional Director in the Ministry of Education and, a Justice of the Peace. Mr. Clarke was one of three brothers. One, now deceased, was a learned Judge of the Supreme

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Court of Judicature. The other is a former Minister of Government, entrepreneur and newspaper commentator. His sister-in-law, Mrs. Mary Clarke was the first Children’s Advocate of Jamaica and is the widow of the Judge.

4. 53.1.4  Mr. Clarke was the licenced owner of a .38 calibre pistol.
5. 53.1.5  Kirkland Close is an upscale residential community. The Clarkes’ house is appointed on a slope and built on several levels, consisting of five bedrooms, lounge areas and a gazebo. It afforded a commanding view of distant hills, the Liguanea plains, West Kingston and beyond. Not surprisingly, it was tastefully furnished and exhibited subdued, not ostentatious luxury. The Clarkes occupied the house with their daughter, then an eighteen-year-old lower sixth form student of a leading high school. By all accounts theirs was a happy home and family.
6. 53.1.6  [The residence presented stark contrast with the humble dwellings of inner-city West Kingston, (the comparatively tiny apartments of Tivoli Gardens in particular), occupied in the main by low income artisans, and trades-people, higglers, hundreds of unemployed persons and, their thousands of offspring.]

Course of a ferocious military assault

53.1.7. The operation was mounted by two platoons (about sixty men) wearing bullet-proof vests and ballistic helmets. It began at or

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about 2:00 a.m. – the dead of night. They rudely awakened the Clarke household as well as others in that tranquil locale, far removed from the turbulence and tensions of inner-city Western Kingston then prevailing.

8. 53.1.8  Mrs. Clarke says that in the course of it all, she made frantic but fruitless calls and appeals for help to 119 (the Police emergency telephone number,) to neighbours and to friends. The JDF asserts that (true to the rules of engagement) they had, at the outset, dutifully and loudly announced themselves; that they were met with “flashes of light, seen coming from the house” suggesting, presumably, that they had been fired on.
9. 53.1.9  Mrs. Clarke says further that at the beginning of their ordeal, her daughter and herself, both shuddering fearfully, hunkered down in the bathroom of the master bedroom, whilst Mr. Clarke ensconced himself on top of a clothes closet. Soldiers burst in on them. Mrs. Clarke alleges that whilst descending backwards from his high perch, he was ruthlessly cut down before their eyes.

1. 53.2.0  His post-mortem report records twenty-one (21) gunshot entry wounds, sixteen (16) of them to the back, (mainly left lower) indicating automatic rifled weapon fire.
2. 53.2.1  Did anyone give the order to fire at him ?. Or, did the shooter(s) act on his/their own judgement made on the spot ?.
   (See also pp. 217 and 221, post.)

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2. 53.2.2  The Clarke’s house was virtually laid waste after entry. Not a single room or area escaped the ravages of high-powered gunfire or other explosive devices. The blackened, pockmarked walls and floors littered with chips or chunks of concrete, shards of glass, splintered wood and other debris, wrecked furniture, tapestry, furnishings and grillwork bore unmistakable evidence of that. It was a scene of systematic destruction rendering the premises almost uninhabitable. Naturally, the jaw-dropping experience left Mr. Clarke’s widow and daughter shaken and greatly traumatized. In stunned bewilderment, they took refuge with neighbours.
3. 53.2.3  Mr. Clarke’s firearm was seized after his demise.
4. 53.2.4  The operation went on past daybreak. The manoeuvres appear to have been well planned and coordinated. There was ample logistical support including a helicopter with arc lights. In the process, the house was heavily cordoned. If the fugitive Coke or any of his “bodyguards” had in fact been holed up in that house, their escape would have been most unlikely, if not miraculous.

1. 53.3.0  An investigator’s need for caution
2. 53.3.1  In this as well as the ‘incursion’ matter, the Public Defender is primarily an investigator. Because of what is or may be in the offing, he must therefore be mindful of the constitutional and legal rights and privileges of persons charged; or of those whose conduct should be the subject of searching judicial enquiry. Such

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persons would all be entitled to a fair and impartial hearing, uninfected by the vice of prejudicial pretrial or, pre-hearing publicity. Indeed the mandate requires the Public Defender to protect these other constitutionally guaranteed rights and privileges, inter alia.

2. 53.3.2  de Smith, Judicial Review of Administrative Action, Ed. 4th, p. 257 puts the position this way:

“The case-law on the point is thin, but on principle it would seem that where a report or determination lacking final effect may nevertheless have a seriously prejudicial effect on the legally protected interests of individuals, the person making the report or preliminary decision must not be affected by interest or likelihood of bias. In short, the same principles as those governing the audi alteram partem rule should apply.”

[See R. v. Kent Police Authority, ex p. Gooden (1971) 2Q.B. 662; p 254]

3. 53.3.3  The “rule” referred to (literally – ‘hear the other side’) is a fundamental principle of natural justice.

Nevertheless, there is no gainsaying that -
• the handling of Mrs. Clarke and her daughter by

the invading JDF soldiers was coarse and frightening;

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• there was wanton, indiscriminate destruction of furniture, fixtures, etc.; the house was near trashed;
• the military assault on the house was carried out using heavy calibre weaponry;
• the invaders gained forced entry to the house and master bedroom by using powered saws to cut through sturdy grill work and heavy-duty padlocks and,
• a judicial enquiry should unravel every stitch of the planning and execution of this operation as well as the supposed “intelligence” which led to it.

53.4 53.4.1

Unanswered Questions

The raid at Kirkland Close and a grieving widow’s account of how her husband was killed (if believed) give rise to many unanswered questions. Some examples are -

1.

2.

3.

Despite the ostensible objective, what was the real purpose of that invasion ?. Was it the capture of Coke or his liquidation ?. Put another way: was it intended to silence him ?.

Assuming that Coke had really been holed up in that house, was it beyond the ingenuity or capacity of the JDF to have devised a plan to wait him out, smoke him out, flush him out, make him surrender, take him out alive ?.

Is it at all likely that the attitude and mindset, the approach and conduct of the invaders was any different from that which propelled those who planned or, who participated, in the ‘incursion’ or ‘siege’ ?. Is it probable that, by contrast, their treatment of the West Kingston dead or aggrieved was humane, gentle or respectful ?.

Making the connection between the two operations, precisely what were the actual orders or instructions given to foot soldiers of the JDF and rank and file members of the JCF, who must have been expected to make their personal judgements, on the spot, mindful of the legal

4.

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duties imposed by the rules of engagement ?. (See p. post.) Obviously, merely insisting that they “respect human rights” during the operations would have been entirely inadequate, particularly in light of the attendant circumstances.

5. Were the planners and the commanders themselves sufficiently aware, alert or regardful of the requirements of the JCF Policy, let alone inculcate its values ?. In all the excitement of the times, did the operatives simply shove the JCF Policy provisions aside, in the interest of an over- riding objective - to take Coke, dead or alive ?.
6. The invaders struck with awesome suddenness, again, in the dead of night; as a contented household slept. Is it likely that Mr. Clarke was rudely surprised by a shocking, confusing, mindboggling scenario ?. In those particular circumstances therefore, of what relevance and application would have been the ancient common law right of Mr. Clarke and every man [preserved by the Jamaica (Constitution) Order in Council, 1962, S.4 and the Constitution, S.26(8)] to defend his “castle” and its occupants, be it well-to-do or humble habitation, against attack which he may honestly (moreso reasonably) have thought unlawful ?. Indeed, was the assault lawful at all ?.

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7. On the other hand and in those circumstances, how do State law enforcement agents lawfully practice the “right” of “self defence” contemplated by the Constitution, common law and the JCF Policy ?. (See Weaver v. Bush (1798) 8 TR 78 and Beckford v. The Queen (1987) 24 JLR 242; (1988) AC 130; (1987) 85 Cr. App. R.378 (PC) (a Privy Council appeal from Jamaica pronouncing on a controversial police killing in the parish of Manchester.)
8. Who is to be believed: the JDF who claim that they had loudly announced themselves and their mission ?. That in response they were fired upon ?. Or Mrs. Clarke, who says that she made numerous telephone calls in a desperate endeavour to find out just what had overtaken her household and why and to get help urgently from the police ?.

TWO LEGAL ISSUES: SELF DEFENCE AND SUPERIOR ORDERS

1. 54.0  It is convenient at this stage to deal with two issues of law – self- defence and superior orders — which arise or may do, in relation to the conduct of the State Security Forces, during both the Keith Clarke and West Kingston operations.

Self-defence

2. 54.1  Interestingly, two appeals from Jamaica to Her Majesty in Council provided the Judicial Committee of the Privy Council (the Board) with occasions for classic pronouncements, in the modern era, on the ancient common law doctrine of self-defence, preserved by the Constitution and entrenched in the repealed Cap.III, viz. Beckford’s case (supra) and Palmer v. R (1971) 12 JLR 311; (1971) AC 814.
3. 54.2  In Palmer’s case Lord Morris, delivering the judgement of the Board, propounded the principle in these terms —

“It is both good law and good sense that a man who is attacked may defend himself. It is both good law and common sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. Of these a (tribunal of fact) can decide. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack, it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities

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of the situation. If an attack is serious so that it puts someone in immediate peril, then immediate defensive action may be necessary. If the moment is one of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is over and no sort of peril remains, then the employment of force may be by way of revenge or punishment or by way of paying of an old score or may be pure aggression. There may be no longer any link with a necessity of defence. Of all these matters the good sense of the (tribunal of fact) will be the arbiter ... If there has been an attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the (tribunal of fact) thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken...”

3. 54.3  That statement of principle was approved and followed by the English Court of Criminal Appeal in R v McInnes, 55 Cr. App. R.551; (1971) 3 AER 295.
4. 54.4  In Beckford’s case, the Jamaican Court of Appeal certified the following question as of “exceptional public importance” requiring determination by Her Majesty in Council:

“Must the test to be applied for self-defence be based on what a person reasonably believed on reasonable grounds to be necessary to resist an attack, or should it be what the accused honestly believed?”

The Board responded as follows:

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“An honest belief in facts which, if true, would justify self-defence constitutes a defence to a crime of personal violence [in (that) case, murder]. The issue of the reasonableness of the belief is relevant only to the question whether the accused’s mistaken belief was honestly held.”

5. 54.5  Prior to that judgment, the test had been thought to turn on “reasonableness” of the belief, not its honesty.
6. 54.6  It should be noted also that —
1. the old rule of law that a person attacked must show a

disinclination to fight by retreating as far as possible

has disappeared;

2. there is no rule of law that a man must wait until he is

struck before striking in self-defence; he is entitled to get his blow in first, if it is reasonably necessary to do so in self-defence: R v Deanna, 2 Cr. App. R. 75 CCA; 25 TLR, 399 and,

3. before the issue of self-defence is left to a tribunal of fact, there must be evidence, whether from the Prosecution or the Defence, which, if accepted could raise a prima facie case of self-defence; if there is such evidence, the issue must be left to the tribunal of fact, whether it is relied on by the Defence or not: DPP (Jamaica) v. Bailey, 1995, 1 Cr. App. R. 257, PC. (another case of police killing);

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4. if self-defence is raised, the burden of negativing it rests on the Prosecution: R v Lobell (1957) l QB 547; 41 Cr. App. R. 100, CCA;
5. whenever self-defence is put forward as justification, e.g. in a case of homicide (extra-judicial killing), it is not any “defence” casting an onus of proof upon an accused, but a matter to be disproved by the Prosecution as an essential part of its case before a verdict of guilty is justified: R v. Wheeler, 52 Cr. App. R. 28; 30;
6. the owner (or occupier of land with a superior title) commits no punishable battery or assault if he uses such reasonable force as he honestly believes to be necessary in defence of his land or house, its occupants or his possessions in resisting an unlawful entry: 2 Rolle Abr. 548, 1. 25; Weaver v. Bush, op. cit. and
7. if the entry to land or house is unlawful and therefore a trespass, then the owner or occupier having superior title may oppose the trespasser “force to force”: Weaver v. Bush, op. cit.

Superior Orders

7. 54.7  The extent to which obedience to an order, given to a military man by a superior, which leads to or causes criminal action by the former, is somewhat unsettled. Failure to carry out some classes of superior orders is punishable under service law for offences triable by courts martial. But the serviceman is sometimes confronted with the dilemma of refusing to obey an apparently unlawful command, thereby avoiding criminal liability or, executing an apparently lawful order which, turns out to be illegal. The better view appears to be that he may not properly be required to execute an unlawful order and will be personally liable for any consequential criminal act.
8. 54.8  According to Dr. Barnett —

“it is now generally accepted that the fact that the soldier had acted in accordance with a command which was not manifestly illegal may, particularly in times of emergency, negative the mens rea (sic) (guilty

intention) required in most criminal charges.” (op. cit., p. 159) [And see Keighley v. Bell (1886) F. & F. 763, 790 per Willes, J. and The Queen v. Smith (1900) 17 CGH Sup. Ct. Repts. 561; cf. Manual of Military Law, Ed. 11th. (1965) Part 1, p.153.]

9. 54.9  The common law of England, Australia and the United States of America does not recognize a general defence of superior orders or of Crown or executive fiat: Archbold, Criminal Pleading, Evidence

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and Practice, Ed. 2004, ¶ 17-134. The learned authors cite Lewis v. Dickson [1976] RTR 476, DC; R v. Howe [1987] A.C. 417, HL, per Lord Hailsham, at p. 427; A. v. Hayden (No. 2) (1984) 156 CLR 532, High Court of Australia (a seven-member Bench) and, Yip Chiu-Cheung v. R. [1995] l A.C. lll, PC.

54.10 But in Jamaica, the soldier on active law-enforcement duty is now bound by the JCF Policy which, —

1. acknowledges the supremacy of the Constitution;
2. provides that lethal force may only be used as a last resort, i.e. after other options have been reasonably

eliminated, and

3. emphasizes individual responsibility as well as that of

supervisors, for the criminal conduct of those who were or ought to have been supervised.

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1. 55.0  BALLISTICS
2. 55.1  “The forensic examination of firearm related physical evidence, from a laboratory

perspective, typically involves the examination of fired bullets (or fragments thereof), fired cartridge cases and firearms. Each firearm is manufactured using a variety of machining processes. Inherent in the manufacturing process is the introduction of numerous small microscopic flaws on all of the working surfaces of the firearm. The combination of microscopic flaws introduced during the manufacture of a particular firearm render (sic) that firearm unique (at a microscopic level) from every other firearm, due to the randomness of the accidentally introduced microscopic flaws.

3. 55.2  “When a firearm is discharged, the unique microscopic flaws from that firearm

can be translated onto the ammunition that is being fired. The firing pin, breech face, chamber and barrel (among other components) are all in direct contact with the fired cartridge and at the time of the high pressure discharge can translate the microscopic flaws from the gun onto the bullet and cartridge case. In the laboratory, a trained examiner can compare the microscopic signature of recovered bullets/fragments and cartridge cases from scenes (unknowns) to samples generated by test firing submitted firearms (knowns).

4. 55.3  “When sufficient matching information between a known and unknown is

observed, the examiner can document and report these findings as a positive association that a particular firearm was used to fire the recovered components. This is the type of work that will be necessary in the laboratory examination of the Tivoli (and related) events”.

(The words “and related” incorporate the associated Keith Clarke investigations.)

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56.0.0 Crucial Importance of ballistic examinations

56.1.0 From the foregoing it will be clear that the important issue of determining whether persons allegedly killed in course of the Tivoli/West Kingston ‘incursion’ met their deaths at the hands of members of the State Security Forces (JCF, ISCF or JDF) or any other, (such as armed combatants/illegal gunmen) can only be settled by the forensic examination of firearms. There is no evidence of visual identification of the shooters. Of course, the issue of criminal liability (in particular, whether at any material time a member or members of either Force acted in self-defence or not) is altogether a different matter.

56.1.2 56.1.3

Public Defender ballistics expert

In this regard, the Public Defender was fortunate to have had the assistance of Mr. Matthew Noedel, a forensic scientist, firearms examiner and ballistics expert, made available by the USAID, also through the UNDP. Mr. Noedel holds membership in leading professional associations in the United States of America. He is a graduate of the University of Montana in Microbiology and Medical Technology and California State University, in Forensic Science. He holds certification in firearms, tool marks, and gunshot residue examination from the Association of Firearms and Tool Marks Examiners (AFTE). He has over twenty-five (25) years experience in these branches of Forensic Science.

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(The exposition on ballistics quoted above is culled from a Preliminary Draft Report presented by him at the end of a “scoping mission” to Jamaica in November, 2010. It accords with statements of principle contained in other authoritative professional and academic works on the subject.)

56.1.4 Mr. Noedel was accepted by the Ministry of National Security as an expert in the ballistic sciences and was afforded access to the Government Forensic Science Laboratory at Hope, St. Andrew. He assisted in the training of JCF personnel awaiting certification as firearms examiners. He also conducted an evaluation of the laboratory, covering essential operational issues, laboratory capacity, security, the physical space and, most importantly, the availability of equipment. In the result, he was able to identify critical deficiencies. His evaluation concluded in part —

“IBIS – The lab system has a fully functional ‘Integrated Ballistic Imaging System (IBIS)’. This system is comprised of a computer driven digital camera that can take high resolution images of the microscopic marks left on fired cartridge cases. The instrument then stores these images and constantly compares the entries to all other entries in the database. This equipment, if utilized for the Tivoli evidence, will be very useful in helping to sort out and screen potential recovered (unknown) and test fired (known) cartridge cases. Because of the irregular shapes of fired bullets and fragments, the system is not useful to sort out fired bullet evidence. Any positive association indicated by the IBIS technology must

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be confirmed by direct microscopic examination of the physical evidence by a fully trained firearm examiner”.

5. 56.1.5  In relation to that vital forensic tool, the comparison microscope, he stated —

“A comparison microscope is a system of two microscopes that are bridged together to one set of eye pieces. An essential tool for any ballistic laboratory, this instrument allows the examiner to place the unknown sample on one microscope stage and the known sample on the other stage and directly compare the two objects through the eye pieces. As stated earlier, the types of marks that translate onto bullets and cartridge cases are microscopic and cannot be readily compared without this design of microscope. Currently the ballistic lab has three comparison microscopes, two of which are incomplete and not working at all, and the third while functional, must be shared between the three examiners (and a fourth independent examiner for Tivoli evidence.”)

6. 56.1.6  Since delivery of Mr. Noedel’s “Draft Report”, the Government Forensic Science Laboratory has acquired two new and fully functional comparison microscopes. A third is partly functional and may be used for preliminary sorting of spent shells only.

2. 56.2  Staffing, tooling of Firearms Laboratory; chronic output backlog, etc.
3. 56.3  The recent acquisitions do not adequately address the demand for trained firearms examiners or, a notorious equipment deficit. These deficiencies are the root causes of a chronic backlog of cases, (presently put at 1,300) a feature which has bedeviled the

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56.4.0 56.4.1

Laboratory’s output for many years past. That feature has militated against the timely administration of criminal justice. It contributes significantly to systemic delay of trials. The fact is that increases in staffing and equipment have not complemented the rise in firearm-related offences. It is expected that four (4) trainee examiners will have qualified for certification by year-end, bringing their number to eight (8) — including a retiree re-engaged on contract. But another four (4) fully functional comparison microscopes are urgently needed.

(Particular attention is also drawn to the summary compiled by Mr. Noedel in the Preliminary Draft Report on his findings, attached hereto as Appendix 21.)

JDF position re ballistic examinations

Up to or about early January, 2011, the JDF maintained a stance of non-co-operation with the Bureau of Special Investigations in relation to the Tivoli ‘incursion’, insisting that “. . . the testing of weapons, should be evidence driven. In light of this fact it is of paramount importance that the nature of the allegation(s) against the Jamaica Defence Force is disclosed in order that the required assistance can be given to ensure that the process goes ahead in

the manner agreed”. ( See Appendix 13.)

What was meant to be conveyed by the phrase “in the manner agreed” remains partly shrouded in mystery. But this much has

56.4.2

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57.0 57.1

since become clear: the author was purportedly alluding to an “agreement” reached between representatives of the JDF and the JCF at the Ministry of National Security called to discuss or iron out the question of the JDF refusal to cooperate with the BSI ‘Tivoli’ investigations. The Public Defender was neither party nor privy to the meeting but very much doubts that any “agreement” on the matter was arrived at; more likely a case of the JDF’s representatives convincing themselves that the BSI would acquiesce in their stubborn refusal to cooperate. This conclusion is supported by the fact that the letter at Appendix 13 prompted the BSI to write to the Chief of Defence Staff by letter dated January 11, 2011, clearly outlining the basis for requiring the JDF to submit firearms for ballistic testing. (Appendix 14.)

The Ballistics Road Map

A “Protocol for the Examination of the Tivoli (and related) Events” (“the firearms Protocol”), drafted by Mr. Noedel was proffered by him in a Preliminary Draft Report (Appendix 21.) It also governed examination of physical evidence associated with the killing of Mr. Keith Clarke. It was a ballistics road map accepted and approved by the BSI and the Ministry of National Security. Lieutenant Colonel Patrick Cole (a former assistant Crown Counsel in the Department of Public Prosecutions) for the JDF, belatedly and reluctantly but unequivocally, agreed to the Protocol in

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November, 2010. Moreover, he stated in Appendix 16 that the JDF “endorse (Appendix 21) as the best framework for the testing of weapons.”

57.2 Nevertheless, the fact of the agreement was doubted in a letter sent by the former acting Permanent Secretary in the Ministry of National Security, Ms. Diane McIntosh, dated April 30, 2012 (Appendix 22) replying to an earlier oral request for confirmation of it made by the Public Defender, backed by letters dated May, 1 and 8, 2012 (Appendices 23 and 24). The agreement was eventually affirmed by the Ministry however, in a letter dated September 3, 2012 (Appendix 25). The agreement provided for the ballistics work to proceed in phases.

57.3. Thereafter the Government bore the responsibility of organizing the system and programme by which the ballistic work should have been undertaken and, completed, in collaboration with an independent expert or experts made available to the Public Defender by the UNDP. (A true copy of the firearms Protocol is attached hereto as Appendix 26.)

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58.0.0 58.1.0

INDECOM: ROLE AND FUNCTION

INDECOM was established by the Independent Commission of Investigations Act, 2010, (the ICI Act) S.3(1). The ICI Act took effect on April 15, 2010 and a Commissioner was sworn in on July 29, that year. Its independence is secured by S.5. The Commissioner has security of tenure. The exercise of his powers are subject only to the provisions of the Constitution and thus, to the directions of the Director of Public Prosecutions (DPP) only. He may investigate any complaint in the nature of those made to the Public Defender in the ‘Tivoli’ and Keith Clarke matters. He is also empowered to “manage, supervise, direct and control” the BSI ‘incursion’ investigations [S.14(2)]

The following are other pertinent Sections of the ICI Act, viz.—

“2. .... unless the context otherwise requires—
“relevant Force” means any one of the Security Forces—

1. (a)  involved in an incident; or
2. (b)  in relation to which a complaint is made, or an

investigation is carried out, under this Act;

“relevant public body” means the public body—

(a) involved in an incident; or
(b) in relation to which a complaint is made, or an investigation is carried out, under

this Act;
“responsible head” means the head of a relevant Force; “responsible officer” means the officer in charge of a

58.1.2

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4.—(1)

Subject to the provisions of this Act, the functions Commission shall be to—

of the

relevant public body; “Security Forces” means—

(2)

1. (a)  ......
2. (b)  .......
3. (c)  take such steps as are necessary to ensure that

the responsible heads and responsible officers submit to the Commission, reports of incidents and complaints concerning the conduct of members of the Security Forces and specified officials.

In the exercise of its function under subsection (1) the Commission shall be entitled to—

1. (a)  have access to all reports, documents or other

information regarding all incidents and all other evidence relating thereto, including any weapons, photographs and forensic data;

2. (b)  require the Security Forces and specified officials to furnish information relating to any matter specified in the request;
3. (c)  .......
4. (d)  ......

(a) (b) (c) (d) (e)

......
the Jamaica Defence Force;

...... ...... ......

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of this (a)

Act, be entitled —
upon the authority of a warrant issued in that behalf by a Justice of the Peace—

(i)

(ii )

to have access to all records, documents or other information relevant to any complaint or other matter being investigated under this Act;

to have access to any premises or other location where the Commission has reason to believe that there may be found any

(iii)

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(3) For the purpose of the discharge of its functions under this Act, the Commission shall, subject to the provisions

records, documents or information referred to
paragraph (i) or any property which is relevant to an investigation under this Act; and

to enter any premises occupied by any person in order to make such enquires or to inspect the documents, records, information or property as the Commission considers relevant to any matter being investigated under this Act;

(4) For the purposes of subsection (3), the Commission shall have power to require any person to furnish in the manner and at such times as may be specified by the Commission, information which, in the

other

in sub-

5.—(1)

10.—(1)

opinion of the Commission, is relevant to any matter being investigated under this Act.

Subject to the provisions of the Constitution, in the exercise of the powers conferred upon it by this Act, the Commission shall not be subject to the direction or control of any other person or authority.

A complaint may be made to the Commission by a person who alleges that the conduct of a member of the Security Forces or any specified official—

1. (a)  resulted in the death of or injury to any person

or was intended or likely to result in such death

or injury;

2. (b)  ......
3. (c)  involved assault (including threats of harm, reprisal or other intimidatory acts) or battery by the member or official;
4. (d)  resulted in damage to property or the taking of money or of other property;
5. (e)  although not falling within paragraphs (a) to (d), is, in the opinion of the Commission an abuse of the rights of a citizen.

The responsible head or the responsible officer, having been made aware of an incident which involves the relevant public body or the relevant Force, shall make a report to the Commission of the incident—

1. (a)  forthwith, where the incident involves
2. (b)  conduct that resulted in the death of or injury to

any person; and

11.— (1)

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(c) not later than twenty-four hours, in any other case.

2. (2)  It shall be the duty of the responsible head or the responsible officer, as the case may require, to take such steps as are necessary to ensure that measures are implemented so that reports of incidents involving members of the relevant Force or relevant public body are duly made to the Commission.
3. (3)  A member of the Security Forces or a specified official who, in the course of his duties—
   (a) becomes aware of; (or)
   (b) is involved in,

any incident, shall take the steps as are necessary (including reporting the facts thereof to the responsible head or the responsible officer) to ensure that a report is made to the Commission in accordance with subsection (1).

12. Where the Commission is satisfied that an incident is of such an exceptional nature, that it is likely to have a significant impact on public confidence in the Security Forces or a public body, the Commission shall require the relevant Force or the relevant public body to make a report of that incident to the Commission, in the form and containing such particulars as the Commission may specify.
13. An investigation under this Act may be undertaken by the Commission on its own initiative.

14.— (1)

The Commission shall, for the purpose of deciding the most appropriate method of investigation, make an assessment of—

1. (a)  the seriousness of the case;
2. (b)  the importance of the investigations;
3. (c)  public interest considerations;
4. (d)  the particular circumstances in which the

incident occurred.

The Commission may manage, supervise, direct and control an investigation carried out by the Security Forces or the relevant public body in relation to an incident, where, in the opinion of the Commission, it is necessary to direct and oversee that investigation.

Subject to subsection (5), the Commission may at any time require any member of the Security Forces, a specified official or any other person who, in its opinion, is able to give assistance in relation to an investigation under this Act, to furnish a statement of such information and produce any document or thing in connection with the investigation that may be in the possession or under the control of that member, official or other person.

......
Subject to subsection (4), the Commission may summon before and examine on oath—
(a) any complainant; or
(b) any member of the Security Forces, any

specified official or any other person who, in the

(2)

21.— (1)

(2) (3)

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opinion of the Commission, is able to furnish

information relating to the investigation.

4. (4)  For the purposes of an investigation under this Act, the Commission shall have the same powers as a Judge of the Supreme Court in respect of the attendance and examination of witnesses and the

production of documents.

5. (5)  A person shall not, for the purpose of an investigation, be

compelled to give any evidence or produce any document or thing which he could not be compelled to give or produce in proceedings in any court of law.

6. (6)  Section 4 of the Perjury Act shall apply to proceedings under this section in relation to an investigation as it applies to judicial proceedings under that section.

[S.4 prescribes criminal sanctions of imprisonment at hard labour of up to seven (7) years or a fine, or both imprisonment and fine, upon conviction for perjury which, is the offence committed by a witness who, “....being lawfully sworn.... in a judicial proceeding, wilfully makes a statement, material in that proceeding, which he knows to be false or does not believe to be true,....”]

58.1.3 It will be clear from the foregoing that in relation to the JDF, INDECOM has an investigative capacity (buttressed by much greater resources and coercive powers) which the Public Defender does not. In particular, it may require the retired Chief of Defence Staff and other army personnel to deliver detailed reports and accounts of the conduct of the Security Forces during the State of Emergency.

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58.1.4 The Independent Commissioner being far better equipped to do so, may therefore yet succeed in securing the necessary JDF cooperation in the ‘Tivoli’ investigations, where neither the BSI nor the Public Defender was able to.

1. 58.2.0  INDECOM and the ‘incursion’/Keith Clarke investigations
2. 58.2.1  It is a matter of public record that at the outset of his tenure, the Independent Commissioner of Investigations declared repeatedly that he did not intend to investigate the West Kingston or Keith Clarke killings. The investigation of both matters by the BSI (now downgraded to a section within the Inspectorate of the Constabulary) was too advanced, he said; although his remit subsumes and superseded the BSI’s functions. Since then however, there has been a volte face by INDECOM. It has purported to investigate the circumstances of Mr. Clarke’s killing but, as far as is known, and apart from informal advice, not the West Kingston fatalities.
3. 58.2.2  The very first intimation of this came, rather matter of factly, during a meeting with the Public Defender requested by the Independent Commissioner, in October, 2011. No agenda had been agreed or even suggested. It was to have been something of a “courtesy call.” The Public Defender was somewhat taken aback by this surprising development. It aroused his apprehension for two reasons:

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1. (a)  the Commissioner announced that he “should be in a position to indict two or three soldiers by early (2012)” and,
2. (b)  that his Keith Clarke investigations would be or were being spearheaded by a former JDF Intelligence Officer recruited to his staff. The impartial observer may well conceive the possibility of a latent conflict of interest.

58.2.3 Besides, in fact and in law, bias may be conscious or unconscious. With respect, it seemed to the Public Defender that it was at least desirable that in the particular circumstances of the Keith Clarke case, a former JDF Intelligence Officer should not be leading the investigations. For it was important to avoid the appearance of bias, conscious or unconscious.

58.2.4 It is important to observe here as well that up to the time of the October, 2011 meeting, INDECOM had given no indication to the Public Defender that ballistics work on the Keith Clarke case –

1. (a)  had begun or,
2. (b)  was underway or
3. (c)  in relation to the stage reached in the examinations

which, it is now apparent, had in fact been started or, was at least being contemplated.

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5. 58.2.5  The Public Defender therefore comforted himself with the belief that the ballistics road map would have been adhered to; that that being the case, he need entertain no fear that any attempt would have been made to indict foot soldiers prior to their superiors’ role in the matter being evaluated judicially.
6. 58.2.6  More than two years have elapsed since conclusion of Mr. Noedel’s Technical Report regarding Phase 1 of the firearms Protocol, as well as on weapons “recovered and visually assessed from the Tivoli event” but, not including “law enforcement firearms”. There the matter rests, as regards the ‘Tivoli’ investigations, as far as the Public Defender is aware.

1. 58.3.0  Now the Public Defender’s ‘Keith Clarke investigations’ may also be thought unduly protracted. In the meantime, INDECOM has embarked upon its own investigations, without any, or any proper regard for the binding ballistics road map; without the necessary Public Defender oversight. In all the circumstances, was or is this sharp departure from the agreed ballistics Protocol excusable ?.
2. 58.3.1  Purporting to have completed its investigation, INDECOM submitted a file to the Director of Public Prosecutions (the DPP) for a ruling, in May, 2012. The file was returned for further investigations to be done.

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2. 58.3.2  Since that time the DPP has not only ruled but has preferred a voluntary bill of indictment charging murder, against a lance corporal and two privates of the JDF. They have appeared before the Home Circuit Court and have been awarded bail.
3. 58.3.3  But, since that time also and, curiously, the Independent Commissioner has informed the DPP and defence counsel that he has directed that further ballistic examinations should now be conducted on two spent heavy calibre bullets. How will this development impact the pending trial or the integrity of the Prosecution’s case ?.
4. 58.3.4  In the Keith Clarke case also, ballistics evidence is a sine qua non: absolutely essential for determining the individual identity of the soldier or soldiers whose bullets killed him. There is no evidence of visual identification. In prompting the DPP’s ruling, did INDECOM act precipitately ? Should it’s submission have been preceded by consultation or collaboration with the Public Defender ?
5. 58.3.5  In whatever event however, it is the considered and respectful opinion of the Public Defender that trial of the three accused should abide the outcome of a Commission of Enquiry.
6. 58.3.6  Accountability of senior JDF/JCF personnel
7. 58.3.7  Of course, the idea that three lowly infantrymen may be indicted, tried and even convicted of the murder of Mr. Clarke

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58.4.0 58.4.1

and thereby bring closure to a military operation gone terribly wrong, is patently untenable. For the bizarre invasion of the gentleman’s pristine abode is, manifestly, not the case of an audacious assault conceived and carried out by a detail of renegade foot soldiers. Moreover, whilst Jamaican jurisprudence enshrines a presumption of innocence in relation to alleged or suspected criminal conduct, there is no “presumption of regularity” concerning the conduct of State Security personnel known to law. All officers of the JDF and JCF involved in the planning and execution of this ill-fated exercise (particularly those in the highest echelons) should therefore be made and, held to account.

Ballistic examination of “Keith Clarke” weapons etc. Breach of Ballistics Road Map

Most significantly however, the ballistic examination of some sixty- nine (69) firearms, including the .38 Special Colt model Agent dual action revolver said to have belonged to Mr. Clarke and, numerous spent bullets, fragments and shells connected to the assault on his house, has been conducted by a retired Government ballistics expert. This examination was done in palpable breach of the firearms Protocol. The independent observer firearms examiner representing the Public Defender (Mr. Noedel) was neither present nor invited to observe the examination. No prior notification of any sort whatsoever was

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given to the Public Defender. The exclusion of the Public Defender from this process requires explanation. Either INDECOM ignored, or the Ministry of National Security (more particularly, the former acting Permanent Secretary) failed, neglected or elected not to apprise INDECOM of the Protocol. Whatever may have been the case, the about face and its consequences also need to be explained.

2. 58.4.2  And whilst, of course, the Public Defender may give no “directions” to INDECOM, for patently obvious reasons it is most desirable that where appropriate, these two parliamentary commissions collaborate in their respective but independent investigations. In this respect, the Public Defender enjoyed a good working relationship with the BSI and covets a similar and closer relationship with INDECOM. There are propitious and encouraging signs of such a relationship developing.
3. 58.4.3  In contrast to the Keith Clarke case, however, no detailed ballistic work is known to have commenced in relation to the Tivoli/West Kingston ‘incursion’ or ‘siege’.

1. 58.5.0  Absolute necessity of completing ballistics work
2. 58.5.1  The Government (or INDECOM, if it has supplanted the BSI in all the pertinent investigations) should now, with all deliberate dispatch, ensure that outstanding ballistic work is completed. A ballistics expert/firearms examiner, representing the Public

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Defender, should have observer status during the completion of this work, in accordance with the agreed Protocol.

2. 58.5.2  Any further delay will obviously prolong the agony of grieving dependents and relatives. It would also provoke growing public skepticism about the Government’s resolve in confronting reasonable suspicion that the State Security Forces far exceeded their lawful authority and acted in wanton abuse or disregard, of the JCF Policy during the 2010 State of Emergency.
3. 58.5.3  Non-completion of the ballistic work prevented the BSI wrapping up its investigations and continues to hamper that of the Public Defender. Completion of this work would clear the way for a decision concerning the appointment of a Commission of Enquiry to be made.(See pp. 188 – 93, post.)

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59.0.0 THE JAMAICA CONSTABULARY FORCE POLICE USE OF FORCE AND FIREARMS POLICY

(THE JCF POLICY)

59.1.1 The JCF Policy “incorporate(s) the fundamental rights and obligations” enshrined in the Jamaica Constitution and international human rights instruments. In particular, these rules of engagement reflect the principles set out in:

“ i.

ii.

The United Nations Code of conduct for Law Enforcement Officials, 9G.A. res. 34/169, annex, 34 U.N. GAOR Supp. (no. 46) at 186, U.N. Doc. A/34/46-1979); and

The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, (Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, - Havana, 27 August to 7 September 1990, U.N. Doc. A/CONF. 144/28/Rev, 1 at 112-1990).”

59.1.2 By Article 1. of i. above, the term “Law Enforcement Officials” includes members of the JDF, (being members of the State Security Forces) and certainly when, as in the instant case, they are deployed in support of the JCF during “law enforcement” operations. In principle therefore, JDF personnel engaged in activities related to the State of Emergency are or would be as culpable as JCF members for any infringement of the Policy, the Constitution or relevant international human rights instruments.

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Faithful adherence to the Policy or the lack of it must therefore be a central focus of any investigation or judicial enquiry.

59.1.3 Certain key provisions of the Policy are attached hereto as Appendix 27.

59.1.4 It will be clear from those provisions that

1. the primary responsibility of law enforcement is the

protection of life and the right to it guaranteed by

the Constitution;

2. the use of lethal or deadly force must be

proportionate in all the circumstances;

3. lethal force may only be employed in self defence;
4. the use of deadly force must be strictly necessary

and only after other options have been reasonably

discounted; it must be a matter of last resort;

5. accountability and responsibility rest with the individual member of the Security Forces whose action is called into question as well as with his

supervisor;

6. officers in supervisory positions have especial

responsibility to ensure adherence to the Policy;

7. medical assistance and treatment for the injured

must be provided promptly and,

8. unlawful orders must not be obeyed.

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59.1.5

59.1.6

The judicial enquiry contemplated by the Public Defender’s recommendation should gauge the degree of adherence to or, the scale of disregard for, the rules of engagement, as the case may be. In this context the JDF use of mortar rounds or other explosive/incendiary devices in the civilian theatre of Tivoli Gardens at the onset of the ‘incursion’ or during the ‘siege’ should be very closely examined.

The JCF Policy and the incidence of “Shootouts”

For decades, Jamaica has been plagued by the rampant scourge of murder committed by illegal gunmen. Despairing citizens are often tempted to turn the blind eye at, or even tolerate, instances of extra-judicial killings, (unjustifiable homicide) actual or reasonably suspected. They rationalize this indifference: the country is a safer place without illegal gunmen. But it is often reasonably suspected or is frequently suggested that this quiescent attitude has emboldened frontline JCF personnel to kill then proffer an opiate of false accounts about “shootouts”.

A Table showing official data of ‘Persons Allegedly Murdered’ (the overwhelming majority by the use of firearms,) ‘Fatal Shootings by (the) Police’ and ‘Police Personnel allegedly Murdered’ (all by gunshot) during the years 2000 – 2010, is attached as Appendix 28.

59.1.7

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59.1.8

Now, consciously or sub-consciously, did the commanders and tacticians responsible for drawing up or, the State Security personnel engaged in executing operational and strategic plans for the West Kingston/Tivoli ‘incursion’, contemplate or bank on a probable perception of the fiercest of all “shootouts” with gunmen having taken place ? Did they hope or were they satisfied that a credulous people would trust their bona fides ?

Questions/Issues to be answered/resolved judicially

The following questions and issues also arise for due judicial consideration:

1. Despite their orders which may have counseled, even emphasized strict regard for the rules of engagement and, the necessity of avoiding the death of innocents (collateral damage;) did the State Security personnel engaged run amok ?
2. Were there any and if so what proportion of them, excited by the chance of killing a band of “gunmen” encamped in Tivoli Gardens/West Kingston ?
3. So excited and sadly misguided that they perceived a kind of “open season” on “gunmen” ? or,
4. Were they all among the bravest of the brave, gallantly risking their own lives in taking on armed combatants in

59.2.0 59.2.1

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faithful discharge of the sworn duty to “Serve, Protect and Reassure” the law-abiding ?

59.2.2 These questions or issues need to be answered or be put to rest; to be resolved judicially.

59.3 The judicial searchlight should also be beamed on —

59.4.0

• •

the indelicate concurrent reaction of the heads of the JCF and the JDF to the strikingly disproportionate ratio of the known head count of civilian fatalities to illegal weapons recovered as at the third day of the ‘incursion’, i.e. 70+:4 (see p. para. ) and,

the dilatoriness of the BSI in commencing and of the Commissioner of Police in ordering the start-up of criminal investigations into the civilian deaths. (See Appendices 30 and 31.)

The Public Defender and the start of JCF/BSI Investigations

• •

59.4.1 It will be observed from p. 2 of Appendix 10 that the Public Defender recommended urgently that steps be taken to “identify and preserve all or all potential crime scenes to facilitate forensic evaluation.” For up to some seven (7) days after the start of the ‘incursion’, no criminal investigation into alleged serious misconduct of State Security personnel had begun. Indeed, it appeared that there was no intention to start any. When therefore

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Appendix 10 did not provoke the speedy response desired and anticipated, the Public Defender dispatched the letter to the Commissioner of Police at Appendix 31, expressing astonishment and indicating that his surprise was —

“....aggravated by allegations made .... by residents of (Tivoli Gardens), that they (had) been told by members of the security forces that they should clean their houses: activities that would irretrievably destroy probative evidence...”

2. 59.4.2  The “probative evidence” referred to particularly related to blood and sero-sanguineous stains and other trace evidence deposited by the deceased in alleged extra-judicial killings – crucial circumstantial evidence. Public Defender personnel were therefore directed to countermand the Security Forces instructions in order to preserve that evidence.
3. 59.4.3  But up to mid-day June 3, JCF/BSI investigations had still not been started. This generated deeper disquiet. Independent forensic experts/scene of crime analysts from Caribbean Genetics (CARIGEN) had also been engaged to assist in the Public Defender’s investigations. They were standing by, determined not to inspect or take blood samples, etc. from any alleged crime scenes, for fear that they may have been accused of interfering with or contaminating those scenes. The Public Defender therefore

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released copies of Appendices 5 and 31 to the news media in a Press Release issued later that day. What effect all this may have had is left to be determined. But next morning, June 4, JCF Scene of Crime personnel entered Tivoli Gardens for the first time since the start of the ‘incursion’, followed by an inspection of the home of Mr. Clarke and, BSI investigations got underway.

59.4.4 As soon as the JCF Scene of Crime unit had completed their activities, the CARIGEN experts and analysts were deployed.

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59.5.0 59.5.1

The JCF Policy, illegal gunmen and “due process”

Despite the foregoing however, let no one doubt that for too many years past, the police have had to confront fearless but fearsome gunmen in the line of duty. Many of them are said to be members of marauding criminal gangs, themselves part of larger criminal networks - the lot being elements of “organized crime”. (See the Epilogue.)

It is the sworn duty of the State’s law enforcement agents to —

• arrest and charge those reasonably suspected of

criminal conduct;

• administer the statutory caution;
• take them before an “impartial court appointed by

law” by virtue of which they are guaranteed a “fair

trial”, based upon a presumption of innocence;

• the Prosecutor (a ‘minister of justice’) bears the heavy burden of proving them guilty, “beyond reasonable doubt”, in which case, they may be sentenced to

undergo

• condign punishment including imprisonment of

varying length or, legal execution and,

• if incarcerated and thereby committed to the humane

care of “correctional officers”, the latter should conscientiously demonstrate their awareness that

59.5.2

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• • convicts are sent to prison as punishment, not for punishment.

59.5.3 These are the essentials of “due process” guaranteed by the repealed Cap. III of the Constitution [and re-enacted by the Charter in line with the principles of the rule of law entrenched in the Constitution.]

59.6.0

59.6.1

Extra-judicial killings of criminal suspects (i.e. those not amounting to justifiable homicide in law) are, of course, reprehensible, unlawful and unconstitutional. For apart from abrogation of the right to life, they result in the egregious denial of “due process” guarantees.

Police Allegations Of ‘Shootouts’

The country is accustomed to conflicting accounts given by the police on the one hand and citizens on the other, of how persons were killed (lawfully or not) and thus denied the enjoyment of all constitutional rights. Generally, versions put out by the Constabulary Communications Network (CCN) follow a predictable format: the police were on patrol when they encountered (a deceased) who pointed a gun in their direction and fired; the police returned the fire, hitting (the deceased) who was “found clutching” a firearm; he was taken to so and so hospital “where he was pronounced dead.”

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59.6.2 The Cadaveric Spasm

59.6.3 Those stories often strain belief, not least by reason of their monotony. For the cadaveric spasm, a phenomenon regarded in the scientific world as a relatively rare occurrence has, according to the CCN, long been a quite commonplace feature of police killings in Jamaica.

4. 59.6.4  On the other hand and almost invariably, the citizens’ versions of those killings allege cold-blooded murder.
5. 59.6.5  Professor J. K. Mason, CBE, MD, FRCPath, DMJ, Regius Professor of Forensic Medicine, University of Edinburgh, explains that -

“(The cadaveric spasm)..... is a contraction of the muscles which is probably mediated by the central nervous system when death occurs in conditions of high emotional tension; it is instantaneous and permanent until putrefaction occurs. The most common manifestation is seen in the hands which may be found grasping some object, particularly one that gives some hope of support. Cadaveric spasm may occasionally involve the hand which has held a firearm used suicidally. The medico- legal importance of this is that, while the absence of spasm is of no significance, cadaveric spasm cannot be simulated after death in an attempt to disguise a homicide. It should be stressed that this phenomenon is uncommon.” (Forensic Medicine for Lawyers,

Ed.2nd, 1983, p.50)

6. 59.6.6  Most significantly however, no instance of the spasm occurring during the ‘incursion’ has been reported. And quite noticeably, in recent months CCN accounts make fewer

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“clutching” allegations: more and more the suggestion is that firearms were “recovered” at the scene of “shootouts” or confrontation with gunmen.

59.6.7 Over the years, also, persistent allegations of police excess and abuse have led to the establishment of a number of units and institutions, including special units and departments of the JCF, a Police Public Complaints Authority, the BSI, the PCOA and latterly, INDECOM - all mandated to tackle the intractable problem of killings by State Security Forces (the police in particular) and other misconduct.

1. 59.7.0  Public Defender’s 2010 – 12 ‘Strategic Plan’
2. 59.7.1  The year 2012 was the last of a three-year strategic plan of the Office of the Public Defender. One of the central objects of the plan is to monitor the enforcement by the Police Commissioner of the JCF Policy.
3. 59.7.2  In March, 2012, following a spike in police killings, the Commissioner announced that he had been moved to consider amendments to and refinements of the JCF Policy, intended to promote adherence to it. He was driven to seek “support” from the Officer corps of the Constabulary as well as the Jamaica Police Federation, representing the rank and file members. He said that the Officer corps would thenceforward be held to account for the

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conduct of deviant personnel: an important term of the Policy long more honoured in the breach than in the observance.

3. 59.7.3  The Public Defender has welcomed the Commissioner’s announcement and offers his fullest support for ongoing efforts (despite resource constraints) to -
• reform the Constabulary;
• expel those found not fit to “serve” the citizenry;
• recruit only the “finest” from amongst the thousands

of volunteers;

• drill them all daily in the tenets of self-discipline and

respect for all and,

• communicate candidly with the Jamaican people who,

the constable swears to “Serve, Protect and Reassure.”

4. 59.7.4  Members of the JCF are sometimes required to serve under appalling physical conditions which are themselves dehumanizing. Policing in Jamaica is fraught with challenges and stress, particularly for those on the frontline, where, personal danger frequently lurks. The Public Defender acknowledges and takes the opportunity formally to thank all conscientious personnel for their patriotic service. So should all citizens (the ones policed) who, bear a civic duty to support them but only in the lawful execution of their duties. For the law cannot be enforced unlawfully.

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60.0.0 THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR)

The ICCPR is a multilateral treaty. It was adopted by the United Nations General Assembly on December 16, 1966 and has been in force since March 23, 1976. The treaty commits State Parties to respect of individual civil and political rights including the right to life, the right to due process and fair trials. As of March 2012, the ICCPR had seventy-four (74) signatories and one hundred and sixty-seven (167) Parties.

1. 60.1.0  The ICCPR is a constituent part of the International Bill of Human Rights, the others being the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR). The ICCPR is monitored by a Human Rights Committee (HRC) (a body separate from the UN Human Rights Council), which reviews regular reports of States Parties on how the rights are being implemented.
2. 60.1.1  Jamaica’s signature was affixed to the Covenant on December 19, 1966. The date of deposit of the instrument of ratification or accession was October 3, 1975 (the year before Proclamation of a State of Emergency last before that of May, 2010 and the second since the attainment of political independence in 1962.)
3. 60.1.2  The following Declaration was made to the HRC on June 1, 2010:

“ ....in accordance with Article 4 (3) of (the Covenant) (Jamaica) has the honour to inform that on 23rd May 2010, the Governor-General

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of Jamaica issued a proclamation declaring a State of Public Emergency in the island.

The State of Public Emergency has been imposed in the parishes of Kingston and St. Andrew as a result of a threat to public safety and shall exist for a period of one month unless extended by the House of Representatives or terminated at an earlier time.

The Proclamation issued by the Governor-General is in strict compliance with the provisions of the International Covenant on Civil and Political Rights and with the Constitution of Jamaica. There may be derogation from the rights guaranteed by Articles 12, 19 and 21 of the Covenant......

The Government of Jamaica hereby requests that the Secretary- General in his capacity as depository of (the Covenant) inform all Parties ... on the provision (sic) from which it may derogate and the reason for possible derogation.”

(Articles 12, 19 and 21 of the Covenant cover the freedoms of movement, expression and the right of peaceful assembly, respectively.)

60.1.3 Article 4 of the Covenant provides:

1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed , the States Parties ..... may take measures derogating from their obligations under (the) ..... Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not

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inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.
3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary- General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

4. 60.1.4  The protection stipulated for under Article 4. may only be limited “in time of public emergency which threatens the life of the nation.” Even then, no derogation from the right to life, freedom from torture and the right to personhood (inter alia) is permissible [Article 4(2)].
5. 60.1.5  Article 6 provides :

1. Every human being has the inherent right to life. This right shall be

protected by law. No one shall be arbitrarily deprived of his life.

6. 60.1.6  The allegations of extra-judicial killings by members of the security forces raise presumptive evidence of derogation from Article 6.
7. 60.1.7  Article 7 provides (in part) :

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

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There is prima facie evidence of unlawful derogation from this Article. There are allegations of persons being subjected to what may be considered “inhuman or degrading treatment”. Persons who were detained claim to have had no access to toilet facilities, food, and water or been made to kneel in gravel, while in detention.

60.1.8 Article 8:
Proscribes slavery, the slave-trade and servitude. It provides,

by paragraph 3 that —
(a) — No one shall be required to perform forced or compulsory labour.

By the provisions of sub-para. (b), the performance of “hard labour” (in the countries of State Parties in which it may be imposed) “in pursuance of a sentence to such punishment by a competent court” is not precluded by Article 8.

But by sub-para. —

(d) For the purpose of this paragraph, the term “forced or compulsory labour” shall not include

1. (i)  Any work or service not referred to in sub-paragraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, ...
2. (ii)  ...
3. (iii)  Any service exacted in cases of emergency or

calamity threatening the life or well-being of the

community

4. (iv)  ...

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There were several complaints by detainees that they were forced by State Security personnel to pick up dead bodies and load them onto Government-owned vehicles, obviously not by virtue of any, or any “lawful order of a court.” This exercise made them most uncomfortable. They were fearful of the consequences for their well-being if they had refused to perform this unpleasant chore which, they greatly resented. Presumably however, and on account of the supposed exigencies then prevailing, the Government could seek to justify the relevant orders given by members of the Security Forces, by reliance on paragraphs 3(d)(iii) of this Article, in answer to complaints that detainees were subjected to “servitude”, “forced” or “compulsory” labour”.

60.1.9 Article 9 provides :

1. Everyone has the right to liberty and security of the person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

60.2.0 Hundreds of male residents of West Kingston and elsewhere were taken from their homes and detained during the ‘incursion’, without explanation or apology and without being informed of the reason for their detention; nor were any charges laid against them.

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There is therefore prima facie evidence of unwarranted derogation from Article 9 which, (sub – para.3) confers an “enforceable” right to compensation.

1. 60.2.1  Article 10 provides :

1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

Again, there is prima facie evidence of infringement of this protection.

2. 60.2.2  (Articles 11, 15, 16 and 18 —
   variously proscribe imprisonment “merely on the ground of inability to fulfill a contractual obligation” as well as the pronouncement of guilt by reason of retrospective criminalization of any act and confer the “right to recognition everywhere as a person before the law” and, the “right to freedom of thought, conscience and religion”.)
3. 60.2.3  In his address to Parliament of May 25, 2010, then Prime Minister Golding announced that the “most thorough investigation” would have been carried out into the joint police/military operation in West Kingston. The Government provided special funding to the Public Defender, an independent Commission of Parliament, (not a Government agency) to facilitate investigations which that Commission proposed to undertake. It is submitted that that funding would be no more than a partial discharge of the

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Government’s obligations under the ICCPR, in particular Article 7. It needed to secure the most diligent probe by its law enforcement arm, the JCF, which, it will be recalled, hardly responded with dispatch and in any event, did not enjoy the unstinting cooperation of the JDF.

4. 60.2.4  The Government’s treaty obligations now require that at the very least, outstanding ballistic examinations be completed, consistent with the Road Map and, that a public judicial enquiry be commissioned.
5. 60.2.5  The alleged misconduct of military personnel during the ‘incursion’ or ‘siege’ identifies the need for the incorporation of human rights standards in Jamaican military doctrine, policy and Standing Orders, as well as the proper training of soldiers to inculcate respect for human rights. A judicial enquiry may yet determine whether army personnel should stand trial for civil offences or proceedings taken by way of courts martial.

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70.0 70.1

COST; ECONOMIC AND SOCIAL IMPACT OF STATE OF EMERGENCY

The macro socio-economic impact of events related to the State of Emergency was the subject of a special study undertaken by the PIOJ which published reports in October, 2010 and April, 2011. The following is an extract from the executive summary of a report prepared by the United Nations Economic Commission for Latin America and the Caribbean, (ECLAC) at the request of the Government of Jamaica (PIOJ):

“The total cost of the fall-out from the civil unrest was determined by, among other factors, the severity and duration of losses to affected sectors and activities, the cost of physical assets damaged and the extent of contingency spending occasioned by its impact. Influenced by these factors, the total effect of the unrest on the economy of Jamaica was estimated at J$22,515.8 billion, equivalent to US$258.8 million. The total impact represented some 2.1% of 2009 current GDP and 50.0% of tourism GDP.

The primary affected population was found in the parishes of Kingston and St. Andrew, in an area collectively defined as the Western Kingston Area comprising Denham Town, Central Downtown, Tivoli Gardens, Fletchers Land, Hanna Town and West Downtown. Together these communities possessed a population of some 39,332 persons. Some 41% of that population could have been found in the community of Tivoli Gardens, which was the home of Christopher ‘Dudus’ Coke. The report identifies the magnitude of the primary affected population which accounts for only 2% of the total population of Jamaica. The secondary population was defined as those who formed part of the employed labour

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force who worked in the parishes of Kingston and St. Andrew and who accounted for 11% of the population. The report concludes, therefore, that 349,674 or some 13% of the Jamaica population may have been directly affected by the events.

It is important to note that while Western Kingston was the locus of the event, several other communities were severely affected in terms of livelihoods lost and dried up liquidity due to their symbiotic relationship with Western Kingston.

Other segments of the population were affected as well, such as farmers in rural communities whose sale of goods through Coronation Market were (sic) disrupted. Students at the secondary and primary levels of education were another group. Because of the timing of the event a significant number of students undertaking Caribbean Advanced Proficiency Examination and Caribbean Secondary Education Certificate had their education disrupted and a number of significant national standardized tests across the country also had to be postponed. Approximately 2,500 children from ages one to four years old in the communities of Tivoli Gardens, Denham Town, Fletchers Land and Hannah Town would have witnessed the events in Western Kingston and may have been exposed to some degree of psycho social trauma and required appropriate counseling.

Another group affected by the event was the tourist (sic) who stayed away from the country and cancelled reservations for fear regarding their safety. On 24 May 2010 Air Jamaica announced the cancellations of three flights (two out of Kingston to Fort Lauderdale and New York and one from Fort Lauderdale to Kingston). The civil unrest and the intermittent blockage of access roads to the Norman Manley Airport were cited as reasons for cancellation.

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Travel advisories/alerts were issued for the island from the foreign affairs departments of the Canadian, United States, United Kingdom and Australian Governments. Many of these advisories were still in place at the time of the assessment, albeit under revised terms. These advisories were revised between 23 June and 10 August. Potential revenue from tourism was also lost due to the moving from Jamaica to Trinidad of the West Indies’ fifth one-day and first test against South Africa because of the security situation in Kingston.

The sectoral composition of the impact indicate that the productive sectors suffered the bulk of the impact (93%), with tourism suffering most of the losses due largely to loss of business and the outlay on marketing and advertising to encourage visitors to return. The distribution sector suffered 3.5% of impact, nevertheless, the social fall-out in the sector would have been considerable, as a number of independent vendors were badly affected. The infrastructure sector suffered 4.8% of the total impact, with the bulk of the fall-out in transportation, reflecting in part the disruption of operators on the route from Kingston to a number of areas. Productivity losses represented 0.9% of the total and stemmed from morbidity and loss of life, social distancing resulting in lost labour productivity. Costs to the health sector were also contained (US$1 million), while the fall-out in communication services amounted to US$2.5 million. The initial estimate for the cost of security operations was US$2.7 million, made up of US$1.5 million for the Jamaica Constabulary Force and over US$1 million for the Jamaica Defence Force and US$0.16 million for Office of the Public Defender.”

The report concludes that the events that unfolded in West Kingston are not new to Jamaican society. However, arriving at the “overall effect of such events, in terms of its impact on growth and development,” is novel. The report suggests that knowledge about the socio-economic cost of violence and unrest should influence development policy and shape the reconstruction efforts for West Kingston.

2. 70.2  In this regard the report proffers conclusions and recommendations.
3. 70.3  The main conclusion is that there is the need for a medium to long-term rehabilitation and revitalization programme for the affected communities to functionally integrate them into the Jamaican society; that the central focus of any programme of renewal should be to create the institutions and incentives for persons in the communities to generate wealth from productive activity.
4. 70.4  The report, therefore, recommends that:
1. A benchmarking analysis should be undertaken of the assets and resources in the communities and any major development deficits to inform the programme of action.
2. Given the specific competitive advance of the area, an integrated cluster could be developed around food and dry goods vending, music and sport.

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c. Special social welfare programmes for supporting livelihood development may be necessary.

4. Micro-credit facility for Female Headed Households should be introduced
5. A campaign for the reduction of stigma/discrimination, which had resulted in social exclusion, should be implemented and,
6. A regeneration plan for the Western Kingston area which utilizes the creativity of the people to generate cultural heritage products that can be offered as additional tourism products, utilizing the creativity of the population in dance, theatre, food and the music history of the communities should be the outcome of the process of revitalization.

5. 70.5  The Public Defender unequivocally endorses these recommendations and commends them to the Government again. Their efficacy depends in part upon the availability of fiscal resources but moreso, upon political will and the resolve of a responsive and responsible Government.
6. 70.6  The Public Defender is especially attracted to the recommendation at letter f. above. Because of the ground-breaking work of social transformation pioneered by the Agency for Inner-City Renewal (the AIR) and the Institute for Social Entrepreneurship & Equity (I- SEE), headed by the thoughtful Dr. Henley Morgan, Ed.D., he was therefore invited by the Public Defender to submit a brief paper to be incorporated into this Interim Report. The note which follows anticipates the rigours of a pending Agreement with the

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International Monetary Fund for the grant of an Extended Fund Facility. (The co-authors are Professor Emeritus Neville C. Duncan, Ph.D and Dr. Michael Rosberg, Ph.D.)

The Note

“ ACHIEVING RENEWAL OF THE HUMAN SPIRIT IN TIVOLI THROUGH ECONOMIC REVITALIZATION: A SOCIAL ENTREPRENEURSHIP MODEL

In Jamaica, there is little or nothing in the IMF package to stimulate sustainable growth among the bottom 40% of the population. Therefore, there is a need to look within Jamaica for lessons on how to assist this body of persons in increasingly trying economic times.

Jamaica owes Tivoli a special effort of reincorporation in the wider Jamaican mainstream, building socio-economic competence. This is not the first time that Tivoli Gardens has been the butt of the exercise of state power. Models need to be built that create a deep sense of social esteem based on individual entrepreneurial development (i.e. non- patronage based).

We haven’t got far to look for a potential alternative model that can be custom-tailored to the Tivoli situation. It would be a model starting with an I-SEE investigation of the social and economic competencies now existing in the community and an identification of people’s preferences for economic activity. Based on that kind of analysis, there is already an activity of the USAID/I-SEE model that expedites a comprehensive way of bringing the people back to a productive life (wherever they are in Jamaica).

People in Trench Town are now very positively engaged in bottom-up economic activities such as food production through greenhouses, recording studios, and ceramic production. With I-SEE’s deployment

of MBA students in Trench Town shops, a Grace Kennedy Business Expansion Grant ($500,000), and First Heritage Co-operative Credit Union loans for new, shopkeeper members’ purchases of Grace Kennedy products, the potential for better productivity and higher income becomes possible [i.e. a self-replicatable (sic) model with other counterparts, e.g. Berger Paints and house painters from targeted communities]. This is only one example of the kinds of activities that can be supported by the I-SEE model of social entrepreneurship with social equity, and can be extended to all major corporations in Jamaica wanting to ‘do well by doing good’ (sic).

The I-SEE MBA students, currently at University College of the Caribbean, are being trained to direct small business development centers, soon to be established across Jamaica. Ones promoted by I- SEE (now working with Jamaica Co-operative Credit Union League and the National Union of Co-operative Societies of the co-operative sector) will operate on an expandable and self-financing basis. The model also extends benefits to workers likely to be laid off in the public and private sectors with severance benefits who may elect to join a programme like this for their own self-development. One great advantage of these self- funded, entrepreneurial activities among the lowest 40% is that it is a low cost, dynamic approach to increase occupational growth, and tax benefits to Government without excessive additional expense. The model can be adopted by other systems (e.g. Banks, Churches, NGOs).”

70.7 The Public Defender therefore gratefully adopts and endorses those ideas. The paper offers something of a template for sustainable social and economic development of Tivoli Gardens and West Kingston. It aims to promote self-reliance by tapping into the

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energy, muscle, creativity and ingenuity of the people. Application of the AIR/I-SEE model would be comparatively cost-effective, requiring minimal State financial outlay. Its success would greatly weaken the pervasive influence of political ‘Dons’, rendering them increasingly redundant.

70.8 The Public Defender therefore recommends to the Government that as a beginning, I-SEE be asked to investigate the “social and economic competencies now existing in the community” with a view to identifying the “people’s preferences for economic activity.” Purposeful Government support of what will likely be practical recommendations for a “custom-tailored” model of self- sustainable social and economic development of Tivoli Gardens and West Kingston i.e., which is not patronage-based, would quite probably help to reverse chronic stagnation.

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71.0 71.1

BEHIND JAMAICA’S POLITICAL “GARRISONS”

The following excerpts of the July 1997 Report of the National Committee on Political Tribalism, chaired by the first Political Ombudsman and, a former Chief Parliamentary Ombudsman, the Honourable Mr. Justice James Kerr, O.J., (ret’d) and now deceased, are pointedly apposite.

“

Garrison communities are created by:

1. (i)  the development of large-scale housing schemes by the State and

the location of the houses therein to supporters of the party in

power;

2. (ii)  homogenization by the dominant party activists pushing out

the minority from within and guarding against invasion from

outside; and

3. (iii)  the expelled setting up a squatter community.

The hard core garrison communities exhibit an element of autonomy, in that they are states within a state. The Jamaican State has no authority or power except in as far as its forces are able to invade in the form of police and military raids. In the core garrison, disputes have been settled, matters tried, offenders sentenced and punished, all without reference to the institutions of the Jamaican State.

The following extract from Mr. Mark Figueroa’s important contribution on the topic speaks eloquently for itself and merits quotation in full:

‘Encompassed in this process are all those activities that are associated with the establishment, the strengthening, and the extension of the influence of garrisons and their associated psychology. In using the notion of a garrison process, I am

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linking the presence of the large scale garrisons such as Jungle, Payne Land, Rema, Tivoli and other less known strongholds, to a political culture. This political culture extends well beyond the boundaries of the communities which have come under the tight control of politicians, their thugs, and/or local enforcers.

Those who promote the garrison process seem intent on extending its dominance over larger and large (sic) sections of the country yet to date there are few constituencies where the vast majority of the territory has been garrisoned. To focus on constituencies alone is to miss the significance of the garrison phenomenon as a whole. The presence of a relatively small garrison within a constituency or the presence of a garrison in a neighbouring constituency can fundamentally alter the course of an election in a constituency that is relatively garrison free. The ability of the garrisons to do ‘outreach work’ greatly enhances their significance. My central concern is therefore with the concept of a garrison community not a garrison constituency.’

Mr. Mark Figueroa therefore emphasized, and we accept, that the creation, development, and maintenance of garrisons are neither accidents of history nor geography, but part of a process deliberately fostered for political ends. Equally important is his focus on the concept of the garrison community, rather than a garrison constituency, the point being that the existence in a constituency of a garrison community can have as significant an impact on the electoral process as the garrison constituencies themselves, and an impetus to transform the garrison community into a garrison constituency.”

71.2 Later, the Committee observed —

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“ Dr. Barry Chevannes described the common features in this way: ‘Just as the political tribe of ancient Greece and Rome was under the leadership of a demagogue so in Jamaica the garrison towns are controlled by the Dons. Entry and exit to and from these communities are controlled by the so-called ‘top ranking’ and gang leaders who have close relationships with the constituency Member of Parliament, get preferential access to contracts and jobs and function as key elements of the local level community political leadership in both parties in these inner city poor areas. These constituencies are made up preponderantly of these “garrison communities” where organized political gangs with high powered M-16 and A.K. 47 assault rifles and sub-machine guns control clearly defined political boundaries and territories where political protection insulates them from the

reach of the security forces.’
We interpret this to mean that on occasions political influence has impeded the Security Forces in the performance of their duties.”

71.3 Under the rubric ‘Poverty’ the Committee stated -

“ The living conditions of the people in most of the ‘tribalised’ communities (some of which we visited) reek of abandonment and neglect. Sub-standard housing, poor sanitation, and numerous environmental hazards are immediately visible. The National Inner City Committee highlighted these conditions in its 1993 Report on Strategy for the Revitalisation of Blighted Youth. Similar observations were made by the Centre for Population, Community, and Social Change in its Study on Urban Violence and Poverty in Jamaica (They Cry Respect) published in 1996.

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Poverty facilitates the development of political tribalism. The slum communities around the parish capitals, particularly, Kingston, St. Andrew, and St. Catherine, continue to grow as unemployed and under-educated youths migrate from rural communities in search of a better opportunity.

The fact is that the Jamaican economy has not performed well over the past 35 years and therefore the country has not been able to provide enough jobs to meet the needs of a growing population.

The conditions in the communities also reflect the failure of the education process, where young people, the regenerative capacity of the future, are graduated from schools without the basic skills required to perform in the formal economy.”

4. 71.4  The Public Defender considers that the report of this high-powered Committee deserves to be and, should now be urgently dusted off and revisited. For it identifies a debilitating and inhibiting symbiotic relationship between crime, politics and poverty. The Public Defender gratefully adopts and endorses the insightful and felicitous observations of the Committee. The work of the National Inner City Committee and the seminal study on Urban Violence and Poverty in Jamaica remain quite instructive.
5. 71.5  The Kerr Committee accepted the opinion of a noted social scientist that Tivoli Gardens was a “large scale” garrison. (Not a relatively “small garrison within a constituency”?) They reflect on the dominant influence of the ‘Don’; on how parlous performance of the economy derives from the inefficacy of “the education

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71.6

71.7

process” leading, ineluctably, to low job growth and unemployment and, on the “close” relationship between the gang leader and member of Parliament.

The crime/politics/poverty symbiosis and the State of Emergency, etc.

Two questions in particular arise for judicial determination, viz. –

• How, and if so to what extent, if at all, was the garrison phenomenon dramatized, was a causative factor or impact the Government’s protracted handling of the Christopher Coke extradition request and/or propelled

the events of May, 2010 ? and,

• Was there a contaminating and characteristic “close”

relationship between ‘Dudus’ and his member of Parliament, former Prime Minister Golding and if so, how did it influence matters ?.

The Public Defender is very interested in the answers to these questions, not least because the symbiosis and scenario both affect the matrix of his mandate; complicate and burden it. But beyond that and of even greater moment, the answers will determine how the symbiosis may have led to or accelerated the death of no fewer than seventy-six (76) citizens. Conversely, how its absence might have prevented the cataclysm being investigated.

71.8

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72.0.0 72.1.0

72.1.1 72.1.2

INQUEST OR COMMISSION OF ENQUIRY ?

In deciding on the way ahead the relative advantage of two alternatives (an inquest or commission of enquiry) needs to be considered.

The Inquest

The Director of Public Prosecutions has indicted three low ranking foot soldiers for murder in connection with the death of Mr. Clarke. Ordinarily, the killing of the other seventy-five (75) deceased could be made the subject of inquests, by virtue of the provisions of the Coroners Act, 1900. Under a 2009 amendment to that Act, an Office of Special Coroner was created [S.5A. –(1)] and—

“5B.-(1).....shall exercise the jurisdiction and functions of the Coroner in respect of any death occurring at any place in Jamaica where there is reasonable cause to suspect that the death occurred as a result of the act or omission of an agent of the State.”

The expression “agent of the State” includes members of the JCF, JDF, the ISCF and the Rural Police (S.3).

Coroner’s juries of “not less than five” lay persons (usually seven) are sworn to hear evidence given on oath and “diligently to enquire touching the death of the person on whose body the inquest is ... held and a true verdict to give according to the evidence.” [S.19.- (1)]

72.1.3

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72.1.4 S.19.—(5) of the Act provides —

“ After hearing the evidence the jury shall give their verdict, and certify it by an inquisition in writing, setting forth, so far as such particulars have been proved to them, who the deceased was, and how, when and where the deceased came by his death, and, if it appears to the jury that, prima facie, (sic) the circumstances of the death indicate that the crime of murder or manslaughter has been committed, the persons, if any, whom the jury charge with murder or manslaughter.”

5. 72.1.5  If the Coroner’s inquisition charges a person with the offence of murder or manslaughter, the Coroner issues a warrant for the arrest or detention of that person [S.20. – (1)].
6. 72.1.6  In the event of a Coroner neglecting or refusing to hold an inquest or where “it is necessary or desirable in the interests of justice that another inquest should be held”, a Judge of the Supreme Court may, on the application of an interested party, order that an inquest be held [S.21.– (1)].
7. 72.1.7  The Coroner may order the production of documents and issue summonses or warrants to compel the attendance of witnesses who, however, enjoy protection against self–incrimination. [SS.22A.–(6); 22B.-(1)]. Written statements (including firsthand hearsay) are admissible in evidence (SS.23A. ; 23B.)
8. 72.1.8  Thus the purposes of an inquest are for a jury merely to —

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(c)

(d)

(e)

to determine how, when and where the deceased came by (his/their) death;
to indicate whether the crime of murder or manslaughter has been committed and,

to name the person(s), if any, whom they charge with either offence.

72.1.9 It will be clear
identified in this Interim Report are plainly not matters within the competence of a Coroner’s jury. Those areas include —

A. the symbiosis or nexus between crime, politics and poverty in Jamaica and how it may have led to the events of May, 2010 particularly the related killings, including that of Mr. Keith Clarke; (See pp. post)

B. the political links and patronage, if any, enjoyed by Christopher Coke and how either linkage or patronage may have affected matters leading up to or connected with declaration of the State of Emergency 2010, and/or the related deaths;

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“diligently to enquire touching the death” of any

relevant deceased;
(b) to establish the identity of the deceased;

(a)

that the various other areas of necessary enquiry

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C. an evaluation (assessment) of the overall conduct of the State Security Forces during the State of Emergency, examined particularly in light of —

1. (a)  the ‘marching orders’/instructions/‘briefing’ actually

given, prior to the launch of operations;

2. (b)  the provisions, of the relevant —
1. rules of engagement - the JCF Policy and,
2. powers conferred by the Emergency

Proclamation;

3. (c)  such evidence as there may be of State Security

Forces’ ‘profiling’ of civilians, (particularly males), consciously or unconsciously —

1. during the ‘incursion’ or ‘siege’ or, in the

assault on the Keith Clarke household;

2. as a causative factor in relation to the killings

and other alleged atrocities and/or

3. by virtue of which those Forces may have retaliated against the earlier attacks on members of those Forces or police stations or practiced a vendetta on residents of Tivoli Gardens, the suspected perpetrators or their

cohorts;

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(d) the “intelligence” which inspired, as well as the circumstances which led to and/or surrounded

the killing of Mr. Keith Clarke;

4. the level of resistance actually encountered by the State Security Forces during the ‘incursion’ or ‘siege’, (whichever it was) and the assault on the Keith Clarke household;
5. the precise body count/death toll related to the State of Emergency and the attendant circumstances of all related killings;
6. as far as is ascertainable, the number of known deceased (see Appendices 1 and 2) who were killed by members of the State Security Forces and/or by others e.g., illegal gunmen/armed combatants;
7. the role played by and assistance derived from the over- flight of United States Department of Homeland Security surveillance aircraft (with or without the collaboration of the Civil Aviation Authority,) during the ‘incursion’ or ‘siege’ and/or the assault on the Keith Clarke household;
8. as regards the use of munitions during the Tivoli Gardens operations –
1. (a)  the advisability/justifiability of that use;
2. (b)  the precise type(s) deployed, in particular, the variety

of mortar rounds – “incendiary” or “explosive”;

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(c) the number of mortar rounds discharged/and the extent of their use;

4. (d)  the injuries/death caused by that use (i.e., other than by gunshot trauma) and,
5. (e)  the damage or loss resulting;

9. the role in the planning of and, the demonstrable oversight of ‘incursion’/‘siege’ activities and the “Keith Clarke operation,” played or effectuated by the Commissioner of Police, the Chief of Defence Staff (ret’d) and senior officers of the JCF and the JDF;
10. the role played by and, the involvement of former Prime Minister Golding and former Minister of National Security, Mr. Nelson, in matters connected with I. above;
11. a judicial examination of —
1. (a)  how the reluctance, failure or refusal of the JDF to

cooperate in investigations by the BSI and the Public Defender, into the conduct of its members during the ‘incursion’ or ‘siege’, impeded those investigations and,

2. (b)  the legal justifiability and/or reasonableness of that failure or reluctance;
11. a granular examination of the Who, Where, When and How etc. concerning the alleged “ discovery”, “recovery” or

M. as
i. the

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“finding” etc. of illegal weapons, by the State Security Forces –

1. (a)  during the ‘incursion’/‘siege’,
2. (b)  after cessation of hostilities as well as
3. (c)  the precise number, make and calibre of those weapons;

regards the Keith Clarke matter in particular -

1. (a)  source
2. (b)  precise details
3. (c)  purport
4. (d)  authenticity and
5. (e)  reliability

of the “intelligence”, so called, which led to the assault on his household and his death;

2. the participation of the heads of the State Security Forces in the planning and execution of that operation: what did they know ? and, when did they know it ? and,
3. the palpable breach of the agreed Firearms Protocol (the ballistics road map) and its consequences and,

N. the system, oversight and quality of record keeping by the KSAC relating to interments in paupers’ graves at the May

Pen cemetery, examined in light of obligations imposed by the provisions of the Kingston and Saint Andrew (Cemeteries) Act, 1874 and regulations made thereunder.

Unsuitability/Inefficacy of Inquests

1. 72.2.1  It follows therefore that the inquest device is not suited to the instant case. It is inadequate and lacks the necessary efficacy. In any event, it would be highly impracticable (and is obviously undesirable) to commit so many deaths (75) to enquiry by a Coroner already struggling to cope with a chronic backlog of well over three hundred (300) cases and growing.
2. 72.2.2  Moreover it is notorious that, not by reason of inertia, coroners and the Special Coroner preside over an inquest system neither equipped nor noted for due expedition. In fact, that system has for many years past itself been plagued by delay and institutional malaise due in no small part also to the well-known unwillingness of citizens to serve as jurors.
3. 72.2.3  With the greatest respect, to commit those deaths to the hands of coroners therefore would be to condemn and inhume the deaths in a veritable sinkhole. But worse, the resort to inquests would condemn the Government to reasonable suspicion of seeking to cover up alleged wide-scale atrocities as well as deny timely enquiry into the matters adumbrated herein.

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1. 72.3.0  The Commission of Enquiry
2. 72.3.1  The inquest mechanism or option must therefore be contrasted with proceedings under the Commissions of Enquiry Act, 1873. By S.2 of that statute, the Governor-General, “whenever he shall deem it advisable” may lawfully appoint commissioners “to enquire into ..... the conduct of any public .... officers.... or into any matter in which an enquiry would in (his) opinion ..... be for the public welfare.” His Excellency may direct whether the enquiry shall or shall not be held in public. In relation to the appointment, constitution, and terms of reference of commissions of enquiry, the Governor-General acts not of his own motion, but upon the advice of the Government.
3. 72.3.2  Commissioners must subscribe an oath or affirmation “faithfully, fully, impartially and to the best of their ability, (to) discharge the trust” reposed in them (S.5). They “have the powers of a Judge of the Supreme Court to summon witnesses and to call for the production of books, plans and documents and to examine witnesses and parties concerned on oath...” - (S.10)

72.3.4 The efficacy of the commission of enquiry was recently well illustrated in relation to the May, 2009 fire at the Armadale Juvenile Correctional Centre, Alexandria, Saint Ann, in which five adolescent female wards of the State perished. Two others died

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later at hospital. That was another case in which the Public Defender initiated investigations and was therefore able to furnish the sole commissioner, Mr. Justice Paul Harrison (ret’d), (a former President of the Court of Appeal,) with most of the statements taken from witnesses who testified. (In that matter the Government rightly opted for a commission of enquiry in preference to a Coroner’s inquest.) In a masterly report, the learned Judge made telling findings, far-reaching and wide- ranging recommendations, including criminal prosecutions and disciplinary action. (Disappointingly, the State is yet to compensate the estate of the deceased, whose death was caused by negligence, breach of statutory duty and/or criminal misconduct.)

72.3.5 Without hesitation, but with what appears to have been a proper grasp of the scope of the debacle of May, 2010, Prime Minister Golding indicated to the Public Defender that he would advise the setting up of a commission of enquiry if so recommended by the Public Defender. In a covering letter to Mr. Golding dated May 28, 2010, (Appendix 29) [which accompanied his copy of another (Appendix 5) sent the day before to Commissioner Ellington and Major General Saunders,] the Public Defender did just that. He recommended that the terms of reference encompass “the circumstances leading up to the declaration of the State of

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72.4.0 72.4.1

Emergency as well as the discharge by all relevant authorities and security personnel of their statutory or other legal duties”. The Public Defender respectfully repeats and has strengthened that recommendation by the several reasons given herein.

The ‘Manatt’ Commission

By a Proclamation published in the Jamaica Gazette of Tuesday, October 19, 2010, (Appendix 32) the Governor-General, issued a Commission under the 1873 Act, with the following terms of reference:

“1. To enquire into and report on the issues relating to the extradition request for Christopher Coke by the Government of the United States of America, the manner and procedure in which the said extradition request was handled by the Government of Jamaica, the circumstances in which the services of the law firm Manatt, Phelps and Phillips were engaged and its role in relation to the said extradition request and the role and conduct of various public officials and private persons and organizations in relation to any or all of the aforesaid matters more particularly set out in the terms of reference hereunder:

1. (a)  The issues relating to the extradition request for Christopher Coke by the Government of the United States of America;
2. (b)  The manner and procedure in which the said extradition request was handled by the Government of Jamaica and the role and conduct of the various public officials who handled the extradition request;

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(c) The circumstances in which the services of the law firm Manatt, Phelps and Phillips were engaged in relation to any or all of the matters involved, by whom were they engaged and on whose behalf they were authorized to act;

(d) Whether there was any misconduct on the part of any person in any of these matters and, if so, to make recommendations as the Commission sees fit for the referral of such persons to the relevant authority or disciplinary body for appropriate action.”

2. 72.4.2  After due consideration, the Chairman of the Commission, Mr. Emil George, Q.C. and the Public Defender, concurred in the opinion that those terms of reference did not encompass the conduct of the State Security Forces during the ‘incursion’, nor in relation to the circumstances surrounding the killing of Mr. Clarke. (True copies of relevant correspondence are attached hereto as Appendices 33 – 36) The report, findings, and recommendations of that Commission are matters of public record. They require no further reference or comment.
3. 72.4.3  Quite surprisingly however, Mr. Golding’s successor as Prime Minister, Mr. Andrew Holness, (now leader of the Opposition,) equivocated or was non-committal when the issue was put to him during a television interview of December, 2011. Plainly alluding to the proceedings before the Manatt tribunal, Mr. Holness was skeptical in referring to what he said was the tendency (of Counsel) to “star” at such hearings; for him, too much

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time had intervened. ( Cf. the Bloody Sunday Saville enquiry, pp. - post.) He even felt able to suggest that perhaps the work of a commission were best relegated to investigative journalism. With respect, that is or would be a flippant or feckless response to matters of great moment and historical importance.

4. 72.4.4  But in the result, there is a troubling divide between two former Prime Ministers regarding the appropriate method of getting to the bottom of what actually transpired, during the ‘incursion’ or ‘siege’; how and why.
5. 72.4.5  A distressing development is the sideshow starring none other than Mr. Golding’s own cynical successor as Member of Parliament for West Kingston, Mr. Desmond McKenzie. At all material times he was the Mayor of Kingston, Chairman of the KSAC and the duly elected Councillor of the Tivoli ‘division’. Like “Dudus” he grew up in Tivoli Gardens but has long since moved out. His Waterworks, Manor Park, Saint Andrew residence was one of the many premises raided by the Security Forces (without warrant) during the State of Emergency. [Taking obvious pride in the experience, he has more than once publicly declared that he and others were flogged by Mr. Seaga (their affectionate but stern “Uncle Eddie”) during the late teens of his “formative” years.]
6. 72.4.6  Mr. McKenzie weighed in at the height of the furore. (see the Apologia, p.1 ). On Friday, February 1, 2013 he told the

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Gleaner/Power 106 News (later personally confirmed by him in a telephone exchange with the Public Defender) that –

A. He was “convinced from the onset that the (Public Defender’s) investigation wouldn’t bear fruit based on the manner in which information was gathered by the Public Defender’s office.”

[What is it about that ‘manner’ that irks

him ?. In the many months since commencement of the Public Defender’s investigations, he did not (even remotely) indicate any dissatisfaction over it. On the contrary, he was instrumental in facilitating arrangements for identification of the dead and the detailed recording of complaints from aggrieved persons (the overwhelming majority of them his constituents) at the Tivoli Gardens community centre. Mercifully though, he has not, or not yet, joined those demanding the Public Defender’s “resignation”.]

B. He “notes that there are still many residents who have not yet been interviewed by investigators from Witter’s

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(sic) office and a lot of details that have not yet been uncovered.”

(Who are these “residents” ?. Why did they not attend at the Tivoli Gardens and City Mission Church Public Defender’s outposts in West Kingston, quickly established to facilitate the recording of complaints ?. Not even after two weeks’ notice of closure of the outposts scheduled for October 31, 2010 ?. Or attend at the Public Defender’s office in all the time since ?. Has Mr. McKenzie, as M.P., advised or encouraged any of them to give statements ?. Taken or encouraged the taking of any steps to revive any dormant complaint ?. Not even the itemized claim made in respect of the Tivoli Gardens marching band and drill team ?. Why not ?. But more importantly, just what are the “details” known to him which “have not yet been uncovered” ?. He has not even attempted to communicate any such to the Public Defender. He certainly has a solemn duty to do so: the sooner the

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better. For evidently, he knows more than he is letting on.

C. He “hopes that (this Interim Report), when submitted.... will bring closure to residents of West Kingston”.

(Whatever he conceives “closure” to be, can it come before, or without, a Commission of Enquiry ?. He has a duty to explain how it possibly could.)

D. A “commission of enquiry would only serve to open old wounds and act as a reminder of the sorrow that residents experienced almost three years ago.”

(Really ?. Those “wounds” are comparatively quite fresh, not at all “old.” They directly affected an estimated thirteen per cent (13%) of the Jamaican population and in some respects the entire body politic. They will for years on end. In fact, their infliction should never be forgotten. Moreover, the M.P. needs to be made aware that his constituents’ “sorrow” is enduring.)

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5. He is urging the “relevant bodies” to move to “compensate those who suffered losses” during the ‘incursion’.

(Upon what rational or legal basis could any of the “relevant bodies” to which he alludes “compensate” any person aggrieved, at this time ?. Without the judgement of a court of competent jurisdiction ?. Without a persuasive recommendation made by the Public Defender ?. Or should compensation be dished out as some form of largesse ?. And how would the recipients be identified ?. On his or whose nomination ?.)

6. Finally, he calls “for the Public Defender to be held accountable for his failure to submit (this) Report and for deceiving the public, in particular, the residents of Tivoli Gardens.”

[The Public Defender is accountable for the delay, has apologized for and offered an explanation for it. Thus the “failure” has been mitigated. But what of the utterly wild and offensive allegation of “deceiving the public, in particular, the residents of Tivoli

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Gardens”, his constituents ?. That suggestion is simply breathtaking. So much so that the Public Defender asked Mr. McKenzie to explain the highly mischievous and inflammatory assertion. Avoiding the issue raised in that question altogether, he referred to the time last year when he told the Public Defender of some intention to pose certain relevant questions to “the Minister.” For the record, the Public Defender then advised him that his Office did not fall under the portfolio of any Minister of Government but was a Commission of Parliament – a fact of which he, a legislator, was surprisingly quite oblivious. (His suggestion that the Public Defender “begged” him not to put the “questions” to “the Minister” is both mischievous and, mendacious. But made the wiser, he appears to have resiled from his misconceived intention.) Now comes the M.P.’s artless, mainly ignorant and most unworthy contribution to the discourse. In particular, his attempt to shoot down the idea or recommendation of a judicial enquiry

is not at all edifying. Rather it embarrasses the “residents” of Tivoli Gardens and himself as well.]

1. 72.5.0  All or any naysay notwithstanding, the Public Defender respectfully submits that, neither “budgetary constraints”, “tight fiscal spaces”, nor the lapse of time should prevent or impede public judicial examination of the matters adumbrated earlier (pp. ), (in particular, the conduct of the State Security Forces and the resistance from illegal gunmen or criminal elements which they allegedly encountered,) during the events of May, 2010.

(Cf. the United Kingdom Government’s handling of and the guidance to be derived from the Bloody Sunday Massacre, in Northern Ireland, January, 1972, considered later herein (pp. 216 – 24 post.)

2. 72.5.1  The appointment of a commission of enquiry must not be fettered by parsimony. For the issue is not whether the country can afford such an enquiry but rather, whether it can afford not to have one.
3. 72.5.2  As regards the procedural obligation to appoint a commission of enquiry, some assistance may be derived from R (on the application of Gentle) & Anr. (op. cit. p. 116, ante) in which it was HELD:

Article 2 of the European Convention on Human Rights provided, in relevant part, that ‘(e)veryone’s right to life shall be protected by law’ ; as a result of interpretation given to Art. 2 by the European Court of

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72.5.3

Human Rights, the substantive obligation not to take life without justification was complemented by obligations requiring the State also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably possible, protect life as well as a procedural obligation to initiate an effective public investigation by an independent official body when it appears that a substantive obligation under Art. 2 may have been violated. (—); the procedural obligation under Art. 2 was parasitic upon the existence of the substantive right...”

In the event therefore, it is the Most Honourable Mrs. Portia Simpson Miller’s call. Having regard to the ambit of the commission of enquiry here recommended, doing the right thing may require some courage. But there is wise counsel coming from the Right Excellent Marcus Garvey – “Men who are in earnest, are not afraid of consequences.” The “right thing” may be the harbinger of “truth and reconciliation”. Proceedings before such a commission therefore may be as close to that inescapable pass as we shall likely get, in this generation. The opportunity or occasion is not to be missed.

Judge Patrick Robinson’s Contribution

The eminent jurist, Mr. Patrick Robinson, is a Jamaican member and sometimes President of the International Criminal Tribunal for the former Yugoslavia. He makes a strong case for an enquiry into the killings which occurred during the ‘incursion’ into Tivoli Gardens and elsewhere and the circumstances which preceded it.

72.6.1

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206

[The approach helpfully suggested by the learned Judge throws into relief one hare-brained idea constantly bandied about by a censorious charlatan and meddlesome sea lawyer. He is associated with an irritant anonymous faction calling itself the ‘Tivoli Committee’. He suggests that the whole sorry business should long ago have been laid before the International Criminal Court, (‘the ICC’,) by the Public Defender.

That idea, for which there appears to be some support, may be quickly put to rest. The ICC has no jurisdiction in the matter. Jamaica has not acceded to the Rome Statute establishing the Court and is not a ‘State Party’; nor has it otherwise accepted the jurisdiction of the Court. And even if it were otherwise, the Statute’s dominant ‘Principle of Complementarity’ would require that the domestic legal system first deals with the “situation”. (Although plagued by notorious delays, that system is at work, and is capable of handling matters, which, should be accelerated by the commission of enquiry process. That process would be triggered by the completion of investigations: practically, faithful adherence to the ballistics road map.) Lastly, the United Nations Security Council has not referred the ‘Tivoli’ events to the Prosecutor of the Court and in the

circumstances, appears unlikely to do so.]

72.6.2 In an article published contemporaneously, Judge Robinson argued (in part) that—

“To find deaths comparable in numbers to those in Tivoli Gardens, Jamaicans would have to revisit two of the three events which provided the furnace in which our independence was forged. In Sam Sharpe's Christmas Rebellion of 1831 over 500 persons were killed; in the 1865 Morant Bay Rebellion some 400 persons were killed. In the most recent of these events, the 1938 Labour Strikes, some 15 persons were reported as killed. These deaths resulted from action taken by the colonial government to protect what it considered to be Jamaica's national interests, which of course meant the interests of Britain. After each of these crucially significant events an inquiry was conducted. No doubt, those inquiries were prompted more by concern for British property and security interests than for the loss of black Jamaican lives...

...The simple, plain truth is that in no country with a Constitution that entrenches the right to life can 70 people be killed in peacetime in a single incident, whether by the security forces or by private persons, and national life and affairs continue as though nothing unusual has taken place.

Independence means nothing if we cannot do better than the British and inquire into not only the threat to national security to which the security forces responded, but also the terrible loss of human lives. Fail to inquire and we fail those who died in 1831, 1865 and 1938 to secure the independence we now have, and we also fail ourselves.

The three historic events were critical markers on our road to independence: the Tivoli Gardens incident must be cathartic and

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72.6.3

72.6.4

72.6.5

catalytic in galvanizing us into strengthening our young democracy.

Two things must happen in relation to the security forces’ operation in Tivoli Gardens.

Apart from the legal obligation, there is, more importantly, a moral duty to investigate the lawfulness of the death of every single person that is known to the authorities. If the traditional methods of doing this are not adequate – my information is that there is a backlog of cases for Coroner’s inquests – special systems should be devised...

Secondly, no less pressing is the need to explain the operation as a whole. This may require an inquiry that would seek to explain the threat to national security posed by the presence of criminals and thugs in Tivoli Gardens and the force needed to counter it. But the inquiry should go beyond that dimension to examine the socio- economic foundations of the Tivoli Gardens phenomenon which, though extreme, is not unique in Jamaica. For that purpose the inquiry should hear from witnesses who can address that social condition and include in its membership social scientists, such as sociologists or criminologists.”

The Public Defender gratefully adopts and endorses this postulation in its entirety.

Handling of the “Morant Bay Rebellion” and “Bloody Sunday Massacre” Compared

A consideration of the British colonial response to the 1865 Rebellion is therefore appropriate here. Some guidance may also be derived from the Westminster handling of the “Bloody Sunday

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Massacre” in Londonderry, Northern Ireland of January, 1972 in which fourteen (14) persons died at the hands of British paratroopers, during the modern era of armed confrontation with Irish Republican Army (IRA) nationalists.

7. 72.6.7  The official response to the two events will be reviewed in turn. It is submitted that the perspective they offer should greatly inform any present decision regarding the wisdom and necessity for a judicial enquiry.
8. 72.6.8  A common thread emerges from analysis of the two events: the propensity of State Forces to commit atrocities during periods of emergency when ordinary laws are suspended, leading inevitably to widespread injustice.

1. 72.7.0  The “Morant Bay Rebellion”
2. 72.7.1  The ‘Rebellion’ of October 1865 began with an outbreak of peaceable protests in the eastern parishes of Jamaica by an underclass of lowly paid and landless black manumitted slaves, led by the Baptist, Paul Bogle, now elevated to National Hero. Their “emancipation” in 1838 ended a six-year period of “apprenticeship”. But “freedom” had brought little relief from harsh, dehumanized servitude. The protests were ruthlessly suppressed, arousing great apprehension and discussion at Westminster and in far-flung parts of the former British Empire — at a time when the means of mass communication were

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comparatively primitive. Accounts of the upheaval left the sovereign Queen Victoria quite shaken. Within weeks she appointed a Royal Commission to enquire into the –

1. a)  origin
2. b)  nature and,
3. c)  circumstances of the “grievous disturbances” and to “collect evidence”

regarding

1. i)  the measures and means adopted to suppress “the

disturbances” as well as

2. ii)  the conduct of those concerned in “the disturbances” and their

suppression and,

3. iii)  to express any opinions thought fit.

2. 72.7.2  The Commission was comprised of two Recorders (Judges presiding over superior courts of England) and, the colonial Governor of the island of Malta.
3. 72.7.3  The outbreak of those “disturbances” had resulted in the Governor of Jamaica, [acting under statutory powers, (a local Act of 9 Vict. Cap. 35)] summoning a thirty-man Council of War upon whose advice he declared martial law. The declaration covered the entire County of Surrey, excluding Kingston. Ordinary laws were suspended. Hundreds of trials of accused persons typified by hasty courts martial were held. Many of them were “drumhead” , i.e. before rough and ready tribunals. The trials took place at disparate locations – Up Park Camp, Kingston; Spanish Town,

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Morant Bay, Port Antonio, Manchioneal, Monklands and Falmouth.

72.7.4 In its report (following more than four months of “diligent enquiry”,) the Commissioners focused particular attention upon the loss of life (by legalized execution or otherwise) occasioned by the martial law measures. They put the number executed at three hundred and fifty-four (354), the majority being in the Morant Bay and Plantain Garden River districts. But in relation to the total number who perished, the Commissioners declared:

72.7.5

“We believe that the return given ..... furnishes as accurate an account ... as the circumstances of the event admit of, without affecting a precision which it is impossible to command.”

Nevertheless, in reviewing “the means used for the suppression of the insurrection” the Commissioners determined not to shut their eyes

“... to the fact that among the sufferers during the existence of martial law there were many who were neither directly or (sic) indirectly parties to the disturbances which it was the object of those placed in

authority to suppress” i.e., innocent bystanders. They continued:

“We fear that this to a certain extent must ever be the case when the ordinary laws framed for the suppression of wrong-doing and the protection of the well-doer, are for a time suspended. The circumstances which are supposed to render necessary their suspension are almost sure to be such as to excite both fear and passion; and

72.7.6

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some injustice, and we fear some cruelties will be certain at such times to be perpetrated; but we think that much which is now lamented might have been avoided if clear and precise instructions had been given for the regulation of the conduct of those engaged in the suppression, and every officer had been made to understand that he would be held responsible for the slightest departure from those instructions. It does not seem reasonable to send officers upon a very difficult, and perfectly novel, service without any instructions, and to leave everything to their judgment. But as under any circumstances, however carefully instructions may be prepared, and however implicitly obeyed, the evils of martial law must be very great,...” (Cf. Emergency powers.)

7. 72.7.7  The Commissioners also remarked upon
   “the tone of levity which is to be found in the ... language of some of the

officers while engaged in serious and responsible duties.”

8. 72.7.8  Much of what those Commissioners said or found seems to have their echo or was replicated in the events of May, 2010. The Commissioners’ salutary comments and observations have a clarion resonance, providing helpful criteria and bases for

comparatively more searching judicial enquiry today.

9. 72.7.9  Even so, the Commissioners glossed over wide-scale wrongdoing, appearing to treat it cursorily; as the inevitable outcome of a martial law regime; viewing things through the hazy lens of a long gone political era of empire, since replaced by the anxious aspirations of an independent people, released from the shackles of chattel slavery.

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1. 72.8.1  The 1865 Commissioners were invested with powers to enforce the attendance of witnesses and to examine them upon oath. They gave a “patient hearing” to -

“...the negroes (who) were for the most part uneducated peasants, speaking in accents strange to the ear, often in phraseology of their own...”

2. 72.8.2  They observed –

“If we have erred on the side of a too great facility in giving audience to all persons, of whatever class.....we have yet the satisfaction of feeling that the Inquiry had been both thorough in fact, and thorough likewise in the estimation of the persons most concerned ..... (in pursuit of) the object which throughout we have regarded as paramount, - that of the fullness, thoroughness and impartiality of the inquiry.”

3. 72.8.3  Despite their endeavours however, the Commissioners were only able to -

“...offer as near an approximation to the number of lives lost and houses destroyed in the course of the suppression, as (they believed) the nature of the case” admitted.

4. 72.8.4  These excerpts of the report disclose an approach to their forensic duties by a nineteenth century colonial Royal Commission upon which, Judge Robinson has opined (and the Public Defender agrees) independent twenty-first century Jamaica should improve. In particular –

A. no mere approximation of the number of West Kingston

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dead can possibly suffice: the precise body count must

be settled;
B. the quite serious complaints of atrocities and abuse

made against the State Security Forces should be considered in light of the provisions of

1. Cap. 3 of the Constitution (since repealed),
2. the JCF Human Rights And Police Use Of Force

And Firearms Policy (the JCF Policy);

3. the twentieth century United Nations International

Convention on Civil and Political Rights (the

ICCPR), to which Jamaica has acceded and,

4. the Emergency powers.

C. the Who, When; the Where, What and the How concerning allegations of the “discovery”, “finding” etc. of firearms, significantly long after the alleged combatants had been routed and the suggested hostilities had ceased or, in response to public disquiet over the ratio of deceased to firearms “recovered”, should be fully explored under sworn testimony;

D. the supposed “intelligence” which propelled the planning and execution of the assault on Mr. Keith Clarke’s house should be fully explored and,

E. “the socio-economic foundations of the Tivoli Gardens phenomenon” referred to by Judge Robinson and so ably already considered by the National Committee on Political Tribalism should be examined in context, without replicating the labours of that Committee, but digging down into the origins of the proliferation of illegal firearm possession in Jamaica and, to determine the connection, if any, between partisan politics and those origins.

5. 72.8.5  In the meantime however, this much is already clear: there is a striking coincidence in the nature of allegations or of fact regarding the conduct of the colonial militia and maroons, following the declaration of martial law in 1865 on the one hand and, that of the State Security Forces during the period of public emergency of May 2010, on the other. The conduct of the Security Forces during the latter requires no less diligent inquiry but more forthright, fearless and discriminating evaluation and treatment of atrocities and abuse, found to have been perpetrated during the State of Emergency.
6. 72.8.6  A commission of enquiry should therefore approach its work mindful of an over-riding obligation to help ensure far more conscientious future regard for the rules of engagement, (the JCF Policy) than appears to have been exhibited during the ‘incursion’ or ‘siege’.

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72.9.0 72.9.1

The Bloody Sunday Massacre

On Sunday afternoon, January 30, 1972, British army paratroopers shot fourteen (14) peaceful demonstrators in Londonderry, Northern Ireland. Thirteen (13) of them died on the spot. The other succumbed to his gunshot injuries whilst hospitalized. Three days before, two (2) members of the Royal Ulster Constabulary had been shot and killed by the rebel Irish Republican Army in Londonderry. They were the first police officers killed in that city during what was known as ‘The Troubles’ and which up to then spanned more than four years. One-third of the city had become a “no-go” area for both the Constabulary and the British Army, which had been deployed there on “counter- terrorism” duties from 1969. A British Conservative Government appointed Lord Chief Justice Widgery to investigate the killings, which came to be dubbed the “Bloody Sunday Massacre”.

Within three months, Lord Widgery concluded —
“1. There would have been no deaths in Londonderry on 30 January if

those who organized the illegal march had not thereby created a highly dangerous situation in which a clash between demonstrators and the security forces was almost inevitable.

2. The decision to contain the march within (two districts of the city) had been opposed by the Chief Superintendent of Police in Londonderry but was fully justified by events and was successfully carried out.

72.9.2

216

217

3. If the Army had persisted in its “low key” attitude and had not launched a large scale operation to arrest hooligans the day might have passed off without serious incident.
4. The intention of the senior Army officers to use (a certain paratroop unit) as an arrest force and not for other offensive purposes was sincere.
5. An arrest operation carried out in battalion strength in circumstances in which the troops were likely to come under fire involved hazard to civilians in the area which (a Brigade Commander) may have under-estimated.
6. The order to launch the arrest operation was given by (the Brigade Commander.) The tactical details were properly left to (an elite unit commander) who did not exceed his orders. In view of the experience of the unit in operations of this kind it was not necessary for (the unit commander) to give orders in greater detail than he did.
7. When the vehicles and soldiers ..... appeared in Rossville Street they came under fire. Arrests were made; but in a very short time the arrest operation took second place and the soldiers turned to engage their assailants. There is no reason to suppose that the soldiers would have opened fire if they had not been fired upon first.
8. Soldiers who identified armed gunmen fired upon them in accordance with the standing orders in the Yellow Card (the rules of engagement.) Each soldier was his own judge of whether he had identified a gunman. Their training made them aggressive and quick in decision and some showed more restraint in opening fire than others. At one end of the scale, some soldiers showed a

72.9.3 72.9.4

The ink was barely dry on the report of the Lord Chief Justice before it came to be denounced as a whitewash. His conclusions provoked agitation across national borders which dragged on for years - through the streets, in the news media, the Westminster Parliament and the Courts, up to 1998. In that year, finally, a

9.

10.

high degree of responsibility; at the other .... firing bordered on the reckless. These distinctions reflect differences in the character and temperament of the soldiers concerned.
The standing orders were satisfactory. Any further restrictions on opening fire would have inhibited (soldiers) from taking proper steps for (their) own safety and that of (their) comrades and unduly hamper the engagement of gunmen.

None of the deceased or wounded was proved to have been shot whilst handling a firearm or bomb. Some (were) wholly acquitted of complicity in such action; but there (was) a strong suspicion that some others had been firing weapons or handling bombs in the course of the afternoon and that yet others had been closely supporting them.

There was no general breakdown in discipline. For the most part the soldiers acted as they did because they thought their orders required it. No order and no training can ensure that a soldier will always act wisely, as well as bravely and with initiative. The individual soldier ought not to have to bear the burden of deciding whether to open fire in conditions prevailing in Northern Ireland, however, this is often inescapable.”

Complaint of a Widgery whitewash; Appointment of a fresh judicial enquiry

11.

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72.9.5

British Labour Party Government appointed a Tribunal to re- examine the matter, by way of an independent judicial enquiry. In announcing appointment of the Tribunal the British Prime Minister said —

“ The terms and powers of any new inquiry would need to be such as to inspire widespread public confidence; that it would have access to all the relevant official material and otherwise enjoy full official support and cooperation; that it would operate independently; that it would investigate thoroughly and comprehensively, and would genuinely and impartially seek to establish what happened on Bloody Sunday; why it happened and those who must bear the responsibility for it.”

The Tribunal comprised Lord Saville, (a Law Lord) Chairman; a retired Chief Justice of the Province of Ontario, Canada and a retired Judge of the Court of Appeal of Australia, its highest Court. At the outset of those hearings Lord Saville vowed to fully investigate 'Bloody Sunday’ and events leading up to it. That the enquiry was named the ‘Bloody Sunday Inquiry’ was viewed as being most significant: a symbolic move to detach the new investigation from the discredited Widgery proceedings. After years spent taking evidence and deliberating, the Tribunal reported in 2005.

Findings of two enquiries contrasted
Whilst Lord Widgery’s report largely exonerated the British

72.9.6 72.9.7

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paratroopers, the Saville Tribunal condemned the soldiers and exonerated their victims who, they found were not posing a threat of causing death or serious injury. The Saville report diverged significantly from its forerunner as illustrated by the following:

On the use of the Paratroopers - Widgery:

Saville:

“ It was suggested that (the elite unit) had been specifically brought to Londonderry because they were known to be the roughest and toughest unit in Northern Ireland and it was intended to use them in one of two ways: either to flush out any IRA gunmen ... and destroy them by superior training and firepower; or to send a punitive force ... to give the residents a rough handling and discourage them from making or supporting further attacks on the troops ... (but) there (was) not a shred of evidence to support these suggestions.”

“ [ Major General Robert Ford, then Commander of Land Forces in Northern Ireland] referred in particular to the ‘Derry Young Hooligans’ as a factor in the continued destruction of the city, and expressed the view that the army was ‘virtually incapable’ of dealing with

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On discipline - Widgery:

them. He also expressed the view that he was coming to the conclusion that the minimum force required to deal with the ‘Derry Young Hooligans’ was, after clear warnings, to shoot selected ringleaders.” (C/f the JCF and criminals said to be roaming about the Corporate Area or gunmen alleged to have (been) assembled in West Kingston/Tivoli Gardens, in May, 2010.)

“ In the events which took place on 30 January the soldiers were entitled to regard themselves as acting individually and thus entitled to fire under the terms of Rule 13 without waiting for orders ... the (soldiers’) training certainly required (them) to act individually in such circumstances and no breach of discipline was thereby involved.”

“ In this belief soldiers reacted by losing their self-control and firing themselves, forgetting or ignoring their instructions and training and failing to satisfy themselves that they had identified targets posing a threat of causing death or serious injury . . . our overall conclusion is that

Saville:

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On who shot first - Widgery:

there was a serious and widespread loss of fire discipline among the soldiers of Support Company.”

To those who seek to apportion responsibility for the events of 30 January the question “who fired first?” is vital. I am entirely satisfied that the first firing ..... was directed at the soldiers.”

Despite the contrary evidence given by soldiers, we have concluded that none of them fired in response to attacks or threatened attacks by nail or petrol bombers. No one threw or threatened to throw a nail or petrol bomb at the soldiers on Bloody Sunday.”

Those accustomed to listening to witnesses could not fail to be impressed by the demeanour of the soldiers of (the unit.) They gave their evidence with confidence and without hesitation or prevarication and withstood a rigorous cross-examination without contradicting themselves or each other. With one or two exceptions I accept

Saville:

On false accounts - Widgery:

“

“

“

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Saville:

that they were telling the truth as they remembered it.”

“ In the course of the report we have considered in detail the accounts of the soldiers whose firing caused the casualties, in the light of much other evidence. We have concluded, for the reasons we give, that apart from (one paratroop private) many of these soldiers have knowingly put forward false accounts in order to seek to justify their firing. ”

On the order to arrest - Widgery:

Saville:

• “  It is understandable that these circumstances have given rise to suspicion that the (unit commander, Colonel Wilford) exceeded his orders, but I do not accept this conclusion in the face of the sworn evidence of the three officers concerned.”
• “  (The unit commander) either deliberately disobeyed (the Brigade Commander’s) order or failed for no good reason to appreciate the clear limits on what he had been authorized to do. He was disturbed by the delays in responding to his request to mount an arrest operation and had concluded that, by reason of the delay, the only way to effect a

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72.9.8

significant number of arrests was to deploy Support Company in vehicles...... ”

Re a judicial enquiry and the “lapse of time” [Observe: the comparative plenitude of its resources and

acumen notwithstanding, it took the Great British establishment all of thirty-three (33) years to get to the bottom of what actually transpired on Bloody Sunday. The Saville enquiry was perhaps the longest lasting and most expensive of its kind in British history. In fact, the tribunal’s report was not released up until 2010 — nearly thirty-eight (38) years after the event. No one imagines that Jamaica should mirror such indolence. But that delay should inform and sharpen the misguided perspective of those who contend or may, that “too much time has elapsed” to allow any meaningful enquiry into the events of May, 2010. For as Judge Robinson argues, Jamaica must “do better than the British.” Besides, the recall of witnesses, when details are still fresh in the mind, greatly minimizes the danger of memory fading over time. Witnesses only need to refresh themselves from narratives contemporaneously recorded, (as in the instant case) in order to deliver admissible, credible and probative oral evidence. The law affords quite ample means of testing the

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credibility of witnesses, the veracity of their accounts and of coping with memory lapse. The fear of fading memories diminishing the utility of a judicial enquiry therefore, does

not have much, if any merit.]
72.10.0 British Government’s acceptance of responsibility; apology

72.10.1 Prior to publication of the Saville enquiry report (in ten volumes) the British Prime Minister told the House of Commons —

“. . . there is no point in trying to soften or equivocate what is in this report. It is clear from the Tribunal’s authoritative conclusions that the events of Bloody Sunday were in no way justified. I know some people wonder whether nearly forty years on from an event, a Prime Minister needs to issue an apology. For someone of my generation, this is a period we feel we have learned about rather then lived through. But what happened should never, ever have happened. The families of those who died should not have had to live with the pain and hurt of that day – and a lifetime of loss. Some members of our Armed Forces acted wrongly. The Government is ultimately responsible for the conduct of the Armed Forces. And for that, on behalf of the Government – and indeed our country – I am deeply sorry.”

72.10.2 The Prime Minister himself referred to other atrocities declaring—

“ What happened on Bloody Sunday was both unjustified and

unjustifiable. It was wrong. Lord Saville concludes that the soldiers of Support Company who went into Bogside ‘did so as a result of an order . . . which should not have been given by their

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commander ...... on balance the first shot in the vicinity of the march was fired by the British Army. . .’; that ‘none of the casualties shot by soldiers of Support Company was armed with a firearm’... that ‘there was some firing by republican paramilitaries...but ...none of this firing provided any justification for the shooting of civilian casualties’ ...and that ‘in no case was any warning given before soldiers opened fire.’ He also finds that Support Company ‘reacted by losing their self-control... forgetting or ignoring their instructions and training’ with ‘a serious and widespread loss of fire discipline’. What’s more – Lord Saville says that some of those killed or injured were clearly fleeing or going to the assistance of others who were dying. The Report refers to one person who was shot ‘while crawling...away from the soldiers’... another was shot, in all probability, ‘when he was lying mortally wounded on the ground’... and a father was ‘hit and injured by Army gunfire after he had gone to ... tend his son.’

For those looking for statements of innocence, Saville says:
‘The immediate responsibility for the deaths and injuries on Bloody Sunday lies with those members of Support Company whose unjustifiable firing was the cause of those deaths and injuries’...and – crucially – that ‘none of the casualties was posing a threat of causing death or serious injury or indeed was doing anything else that could on any view justify their shooting’...”

72.10.3 From as early as 1974 (albeit without formally accepting liability) the British Government paid over monies by way of amends to

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72.11.1

72.11.2

some victims, their dependents, or families. But quick on the heels of the Prime Minister’s unqualified apology, the Ministry of Defence opened negotiations with solicitors “to fully compensate their clients for the loss of their loved ones, the wounding of others and, the shameful allegations which besmirched their good name for many years.”

Parallels and guidance offered by the “Bloody Sunday” imbroglio

The allegations recorded by the Public Defender in these investigations (see e.g. pp. 58 – 62, ante) should be looked at in light of the British Government’s belated handling of the Bloody Sunday affair and, the Saville findings. There are many instructive parallels, some of them quite remarkable.

The ‘Tivoli’ complaints suggest that in course of the ‘incursion’, some security personnel “showed more restraint in opening fire than others”; more exceptionally, some showed a “high degree of responsibility”. But there were others whose firing was quite “reckless.” (One male deceased is alleged to have been shot when he attempted to rescue his partner blown off her feet by a JDF “bomb”. Another is said to have been finished off as he lay mortally wounded.) As on Bloody Sunday, so during the ‘incursion’: these distinctions “reflect differences in the character and temperament of (those) concerned” — i.e. members of the

72.11.3

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State Security Forces.

4. 72.11.4  Training makes soldiers aggressive, the world over. However

skeptically the conclusions of Lord Widgery may be viewed, it must be accepted that “(no) order and no training can ensure that a soldier will always act wisely, as well as bravely and with initiative.” The same is true of frontline Jamaican policemen who, have long been conditioned and hardened by the rigours of confrontation with callous gunmen. The quite smug attitude or position of the JDF that its members did no wrong during the ‘incursion’ is therefore also manifestly untenable.

5. 72.11.5  It therefore needs to be determined and, with relative certitude, which of the seventy-six (76) civilian deceased or the many wounded, if any, were shot whilst handling a firearm or other weaponry: so too the level of armed resistance actually encountered by the Security Forces. What justification was there for carnage on such a comparatively massive scale but the belated “discovery” of such relatively few firearms
6. 72.11.6  The inquiry must be fair and, be seen to be fair both to and, in “the estimation of the persons most concerned” in the execution of the emergency powers which may have caused the death of so many during the State of Emergency (i.e., the State Security Forces) as well as in the opinion of the dispassionate observer. The actual operational instructions —

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i. given to JDF foot soldiers and JCF rank and file and,

ii. their “departure”, if any, from those instructions must be considered in light of available evidence and the prevailing rules of engagement.

72.11.7 Of no less importance is the necessity of ensuring that:

1. the constitution, “terms and powers of any (judicial) inquiry (are) such as to inspire widespread public

confidence”;

2. that commissioners “have access to all the relevant

official material”;

3. that they enjoy “full official support and

cooperation” and no less from former Prime Minister Golding, former Minister Nelson and the heads of the State Security Forces, serving or retired;

4. that their independence, fearlessness and impartiality be assured;
5. that the enquiry be thorough and comprehensive and, that it
6. “establish what happened (during the ‘incursion’ and the assault on the Clarke household,) why and how what happened (did) and, those who must bear responsibility,” according to law and the Constitution.

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73.0

LIST OF PRINCIPAL RECOMMENDATIONS

That the Government cause the Forensic Science Laboratory to be adequately equipped and staffed to facilitate completion of outstanding ballistics work in accordance with the agreed Protocol.

That a thoroughgoing Commission of Enquiry be appointed to conduct a judicial enquiry into the activities of the State Security Forces and illegal gunmen during the State of Emergency, 2010.

That the Public Defender (Interim) Act, 2000, S.13(2)(b)(ii) be altered or amended expressly to exclude investigations related to allegations of infringement of any constitutionally protected right or freedom or, any criminal action.

That the Kingston and Saint Andrew Corporation takes immediate steps to ensure due and sustained compliance with the provisions of the Kingston and Saint Andrew (Cemeteries) Act, 1874 and Rules promulgated thereunder, concerning interments at the May Pen Cemetery.

That the Government initiates such a study as is suggested by the Agency for Inner–City Renewal (AIR) and the Institute for Social Entrepreneurship & Equity (I-SEE) as precursor to designing an entrepreneurship model to drive economic and social development of Tivoli Gardens/West Kingston.

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April 29, 2013

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EPILOGUE

This Interim Report is necessarily short on detail in some regards. Understandably, it may have posed more questions than it has provided answers. Hopefully, however, it will have focused attention on the big picture: not minutiae. If nothing else, it draws attention to the high duty of the Government in what might be a seminal year in Jamaican history: the Jubilee of political independence. The year 2013 also marks the one-hundred-and- seventy-fifth anniversary of “emancipation” from chattel slavery.

This is therefore an auspicious juncture in national life – a time for both retrospection and forethought. As a troubled nation yearns for social stability, even as it carries on an unequal struggle for economic independence; for social peace and stability, this much is clear: there is need for a bold and seismic shift in the mode of tackling the intractable problems of crime, politics and poverty. It is time to put Love to work.

The events of May, 2010 are, of course, no mere seven-day wonder, best soon forgotten. On the contrary, they herald an epoch. For they bring a tide in Jamaica’s affairs which, “taken at the flood”, may help ensure that we never pass that catastrophic way again. “Omitted, all the voyage” of the next fifty years may be “bound in the shallows” of misery. Jamaica should therefore now “take the current as it serves” or flounder.

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Immediately, that current “serves” up the urgent necessity for a thorough-going judicial enquiry into the tumultuous events of that month. It also serves the opportunity to initiate an ethos of Love.

The findings and recommendations of the commission of enquiry here recommended (if endowed with effectual terms of reference,) may be expected to help define and shape a framework; can help enlighten a pathway to the future, in which a beleaguered but resourceful people might flourish, through the adoption of that ethos.

Unlike the first, the next fifty years of independence must mirror the ideal of common regard for the rule of law, more particularly, universal respect for fundamental rights and freedoms. The period must also witness an unwavering devotion to the pre- eminent responsibility of Government to ensure justice, not only between citizen and citizen but above all, against itself. This Interim Report seeks to assist the Government in its discharge of that pivotal burden.

There is a corollary: the ennobling civic duty also to respect human life and the rights of all others. For the constant demand for “Equal rights and justice” and the persistent refrain of “We want justice !” almost invariably ignore the reality: that the task of ensuring that “equality”, of bringing home the “justice”, cannot

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be the duty of or be left up to the Government alone. That task begins with the individual citizen – with he who makes the demand; with she who constantly chants the refrain.

Years of making demands and singing the refrain have not brought much relief. But without a doubt, our situation would have been much the better, had there been greater respect for the rights and civic responsibilities conferred by the Constitution – the fundamental law.

The mutuality of rights and responsibilities is a guiding but greatly abused principle of a young yet not unstable democracy. It denotes a culture of civilized conduct which the fresh Charter itself rightly seeks to establish. For the abuse of human rights is caused only through the vice of human wrongs.

Thus the Charter enacts a simplified and expanded Chapter III of

the Constitution. Section 13.-(1) recites a preamble which

proclaims that –

“(a) the (State) has an obligation to promote universal respect for, and observance of, human rights and freedoms;

2. (b)  all persons in Jamaica are entitled to preserve for themselves and future generations the fundamental rights and freedoms to which they are entitled by virtue of their inherent dignity as persons and as citizens of a free and democratic society; and
3. (c)  all persons are under a responsibility to respect and uphold the rights of others recognized in (the) Chapter, (and that its) provisions ... shall have effect for the purpose of affording

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protection to the rights and freedoms of persons as set out in those provisions, to the extent that those rights and freedoms do not prejudice the rights and freedoms of others.”

The “provisions” referred to delineate the various entrenched rights and freedoms guaranteed by the Constitution and the Government. Those rights and freedoms, “shall have effect..... to the extent that (they) do not prejudice the rights and freedoms of others.” And (subject to certain safeguards) they may only be abrogated, abridged or infringed in ways or manner “demonstrably justified in a free and democratic society” [ss.(2)].

Indeed, respect of human rights by all, enhances the quality of life of all. Jamaicans should therefore begin to see themselves as a nation family of brothers and sisters and be each other’s “keeper”. In that scenario, there will and can be no comfort for organized crime and gunmen who gnaw at the flesh or for State Security personnel who disregard the sanctity of human life or neither serve, protect nor reassure the citizen.

In the process, all become ‘public defenders.’ It is respectfully submitted that there is no better way of strengthening or preserving our democracy.

The foremost duty of Government is the protection of the life and personal security of the citizen. The Government is guarantor of the right to life as well as the enjoyment of all aspects of freedom

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of the person, unfettered in any way, save as may be necessary for preservation of the rule of law.

Government effectuates its guarantees or fails to, largely by the action of its servants and agents; in these times, the State Security Forces in particular. It is the conduct of those Forces that is now in question and which requires granular review. For it is that conduct that is alleged to have caused the death of so many, over so short a time and, provoked the lingering grievances of hundreds of others.

On the other hand and, for too many years past, barbaric criminal acts have been perpetrated by brutish citizen against despairing citizen. The offenders are mainly rampaging, shiftless young Black males, poorly educated, at best semi-literate, steeped in unreason and depravity; unemployed, or “unemployable”, having no vocation and abandoning hope. They are indiscriminating in their choice of victims, not sparing the very young, the very old, pregnant women or the disabled: right across the economic, social and age spectra. The Honourable Omar Davies, M.P., Minister of Transport, Works and Housing once described some of them as “irredeemable”. He did not say that all of them were; nor are they.

Irredeemable or not, they constitute the overwhelming majority of those incarcerated in decaying, hugely over-crowded “correctional”

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institutions, sections of which are veritable dungeons and all of them dens of unremitting decadence. Their degenerate condition is very much a part of the colonial legacy. They are in desperate need of emancipation from mental slavery. Many of them may be rehabilitated, reclaimed and redeemed: whether they be convicts serving time or, wandering at large, enjoying the constitutionally guaranteed freedom of movement, even as they go about wreaking havoc. Together, as that band of armed cowards headed or head for personal ruin, they have ruined whole families, brought untold hardships upon the children of their fallen victims and, lasting pain and suffering upon adult survivors.

But whatever are the disparate reasons they turned out the way they have, the fundamental cause of their indiscipline and situation is that they were neither nurtured in, nor nourished by Love; where necessary, tough Love. They are the issue of fecund breeding and the product of poor parenting, mainly absentee fathering or no fathering at all. Concomitantly, indolent mothers abandon, delegate or relegate the unexcelled civic duty to secure their children’s proper upbringing, foisting that responsibility upon severely overburdened educators. That phenomenon is now sought to be addressed by a Children’s Advocate, appointed under the provisions of the Child Care and Protection Act, 2004, — a measure which seeks to restore the lost tradition by which the

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child is brought up by “the village”; a tradition by which all adult citizens take a responsible “parental” interest in the proper rearing of the nation’s young and impressionable.

The beast which reigns in the mind and breast and heart of the gunman whose “avocation” is murder and mayhem may be tamed by Love. Being a real “enemy of the State”, he must be overpowered. Mahatma Gandhi offers one approach – “Whenever you are confronted with (sic) an opponent, conquer him with love.” For “it is possible that a man may be so changed by love as hardly to be recognized as the same person.”

Indeed, there is no prospect of lasting social stability and security in Jamaica if its people (particularly the young) are not fully grounded in the tenets of Love: the foundation of all justice – social, economic or, according to law. The jurist may consider the notion something of a stretch but Love actually is a sentiment which undergirds a great limb of the law, founded on fairness and known as Equity. The hortatory words of Mr. Garvey are apposite – “Let us in shaping our Destiny, set before us the qualities of human Justice, Love, Charity, Mercy and Equity.”

Love is no mere palliative; rather, the eternal light. There is nothing nai?ve or simplistic about ideas of its efficacy. It is the hallmark of all well regulated families.

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Love dwarfs the pillars of religious dogma. It is the essential message of the Christian gospel which proclaims that God is Love. It is part of the creed of Buddhists, Hindus, Jews, Muslims, Rastafarians and others alike – the embodiment of the believer’s faith. It is something of a cure-all; a balm for so many of Jamaica’s present and looming worries. (A collection of inspiring thoughts on the subject appears at Appendix 37.)

It may be argued however, that it is preferable to insist on the Security Forces being restrained by law from committing extra- judicial killings, malicious assaults or destruction of property; that they should be made to adhere to rules of engagement and the command and control of superior officers: not inculcate the principles and culture of Love. For military men and police officers are not trained to love, so the argument goes. They are trained to carry out their duties (particularly in times of armed conflict) according to the precepts of domestic and international humanitarian law. In the discharge of their duties therefore, they need only be mindful of the situation of innocent civilians or non- combatants: not be unduly concerned about anything else. Further, that they must obey operational commands; be guided by the exigencies of necessity and proportionality and should prevent or minimize “collateral damage”. In times of imminent danger to themselves or innocent civilians, they should not be

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guided by religious dogma but by professional codes of conduct and the direction of ground commanders.

Put succinctly: military men and police officers engaged in armed combat should strive for the highest standards of professionalism and humanitarian conduct and not be distracted by the emotion or sentiment of Love. This is a powerful argument. It is redolent of practicality and innate common sense.

Nevertheless, the Public Defender insists that the tenets of Love supersede everything; that in the peculiar Jamaican circumstances, not any time soon will adequate “resources” - human, fiscal or other - ever be able to work the solutions to the nation’s travails which only Love can. It is an overarching sentiment. Its compelling appeal to the human conscience, is capable of ensuring obedience to the rules of engagement, where the command of superiors has failed to rein in a propensity to kill or abuse and infringe fundamental human rights. For as was said by W. R. Alger - “Love makes obedience lighter than liberty.” Thus in the execution of duty consistent with the JCF Policy, there is ample scope or room for Love.

An indigenous Jamaican thematic take is the mantra of “One Love”. The concept is much commercialized and too often trivialized. Its unimagined potential is waiting to be unleashed and activated. Ironically therefore, the concept desperately needs

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to be indigenized. In fact, only Love can animate the lofty National Motto – “Out of Many One People”.

As the Most Honourable Sir Patrick Allen has said repeatedly however, first we must believe! Passionately and compassionately believe in all ourselves and our boundless possibilities.

This Interim Report is tabled in Parliament soon after what of recent times has become a mainly romantic celebration of ‘Black History Month’. There is poignancy in the remembrance and the moment.

According to the latest (2011) population census, resident Jamaicans are 92.1% Black, being of African descent. But there are ethnic minorities of Chinese, Caucasian (White and Indian), ‘West Indian’, Middle Eastern, ‘Mixed’ and ‘Other’ origins. Each is a citizen of a country riven by inequality; with a ‘People’ who need to be made and become more equal.

As Mr. Garvey explains – “It is only a question of sheer accident that we happen to be fellow citizens today with the descendants of those who, through their advocacy, laid the foundation for human rights.” (And see Appendix 38.) That “accident” has also created the advantages of ethnic and cultural diversity which inspired the Motto. But it is no accident that a National Heroine and three Heroes were Blacks, the others being ‘mixed’. Their sacrifice and contribution to nation building is well documented

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but their noble example is honoured more by lip service than by replication.

Even now, that living majority of Blacks, (ever the labouring class for the most part) is still in need of an awakening. That awakening can only come from within. The road to the awakening is well delineated by Mr. Garvey in his Philosophies and Opinions. That majority can accomplish what they will by lawful means.

[Garveyism will be introduced into a continental curriculum of secondary education for Black Africa this year. In 2012, came the long overdue introduction of the doctrine at the early childhood through secondary level in Jamaica. We should now take the doctrine “to the world” and not wait for its repatriation before it wins universal local acceptance.]

The country’s ethnic minorities largely control the material resources and means of production of the nation. Many of their number are cut from the same cloth as the “absentee landlord” of a bygone colonial era. And there are amongst them latent pockets of holdover racism. Those minorities must embrace the mantra of “One Love”, not just mindlessly sing along or dance to the mesmeric lines and tempo of the namesake “Song of the (20th) Century” popularised by the Right Honourable Robert Nesta Marley, OM.

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Those ethnic minorities have it in their gift and ingenuity to adapt those resources and means of production to demonstrably patriotic and profitable purposes. For they are a privileged, not a marginalized class, as are other minorities rightly regarded as “vulnerable”. They should heed the counsel of Confucius and “fix (the) mind on truth, hold firm to virtue, rely on loving kindness ...” For as with all positions of privilege, their status bears particular responsibilities, in this case to help make life-changing contributions to the commonweal. As Confucius puts it: “Consideration for others is the basis of a good life, a good society.” (The Analects.) HIM Emperor Haile Selassie I is himself persuaded that “there is nothing more worthwhile and rewarding in life, than to work for the benefit of others. One can derive more pleasure from giving than from receiving.”

In the meantime, a passionate Public Defender can be expected to protect and enforce their rights as minorities, in accordance with the Constitution and the ICCPR.

Jamaica is no nation of “samples” but of great or potentially great achievers. We should seize the opportunities afforded by our diversity and of our size or “smallness” which is, the ability and capacity to become polished models of much that becomes mankind.

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Love bespeaks respect – the great yearning of the hapless horde of Black urban poor. It is they who bore the brunt of atrocities said to have been committed during the State of Emergency; they who, in their unrequited yearnings, turned to ‘Dudus’ as ‘godfather’. They need purposeful and legitimate help to help themselves; to be empowered to help others and thereby help to secure the nation’s future.

The alleged perpetrators – rank and file police and foot soldiers – spring from the same ethnic and social class. They have been recruited from that class for over one hundred years. The deviants amongst those Forces are not, (because they do not consider themselves) restrained by the Constitution, the law or rules of engagement. They constitute another minority whose elements continually embarrass and shame their conscientious colleagues by their misconduct. They are a minority who need to be reined in. They need to be converted to the transformative call of One Love. Because they too enjoy a privileged status, (that of law enforcement agents,) they must be reminded continually, that the law cannot be enforced unlawfully — a modus which betrays an oath and renounces responsibility.

The modus vivendi therefore, also requires perpetual and purposeful evaluation. The anti-social class of marauding

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gunmen and, their kind as well, must be properly factored into all normative agendas and processes of transformation.

The foregoing sets down the fundaments of a credo of the Public Defender, a parliamentary Commission uniquely placed to help create an environment of relative peace in which the rule of law can thrive. Wiser men are at liberty to fill in the blanks. But the credo might help us work our way out of most, if not all problems. It envisages no Utopia but a journey to ‘paradise’ on earth: on a tropical island blessed with what some say is incomparable natural beauty. The Mahatma has a few wise words for those who would be leaders of the process – “The day the power of love overrules the love of power, the world (even Jamaica) will know peace.” And according to the Hindu icon, that is because – “Love is the strongest force the world possesses and yet, it is the humblest imaginable.” It is also the most humbling.

Indeed, the civilizing characteristic which best becomes the living generation of leaders and “elders” (and all those to follow) is humility, a heavy dose of which, applied at this time, would signal the dawn of atonement. And there is a great deal for which the living generation needs to atone, e.g., the declining standards of morality and rising mountain of public debt which it bequeaths to the young. The smart and necessary thing for us to do therefore is

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to change course now and head for Love - the road not yet travelled; the enlightened pathway to progress.

The credo contemplates no overnight fix but a process of moral, social, political and economic transformation by which the country can work out its way to emancipation of all kind. It envisages an end to “tribal” politics; a severing of the nexus between crime, politics and poverty and the dawning of economic independence.

The credo also contemplates acceleration of a process by which only we may dramatically reverse that other process through which, by dehumanizing himself, the Caucasian slave-master and his cohorts, (some of them Blacks,) attempted to dehumanize Black slaves and so whip them into a hard-labouring force of unprecedented teeming millions who came to be regarded as “the wretched of the earth,” toiling over hundreds of years without recompense or reparation.

A diabolical attempt also to dehumanize the slave facilitated the means by which forced labour facilitated exploitation of a so-called “New World”, generating untold wealth for Europe, whilst deliberately under-developing a Black Motherland. The objective always was to perpetuate privilege, social and economic injustice, more recently engineered by dividing up Earth into a First, Second and Third World, Jamaica being a part of the latter.

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The necessary transformation will therefore not likely be accomplished by this generation or the next. It is the work of all coming generations - everlasting work that will perpetually return bountiful social and material dividends. For, as has been said, “love is love’s reward.” The only way to deserve and earn it however, is to work at Love. Thus it is “a thing to be learned.” Resort to that learning process is also long past due.

Obviously, that transformation will never be achieved unless first a start is made. Today. Made by every living Jamaican. So how ?.

First the citizen aroused resolves: “I am Jamaican. I love or will start learning to love my country”, meaning: each other, as ‘neighbour’. For the country is its people; all of the people.

Love of country is the motivating passion of the patriot. That love will quicken appreciation of President John Kennedy’s dictum - “Ask not what your country can do for you, but what you can do for your country.” Doing for one’s country is doing for one’s self. Jamaica now needs a great host of patriots, not a parade of pundits, protestors and naysayers; rather, a citizen army of doers determined to undo wrongs and make fulgent models out of misfits and malcontents, being ever mindful of the poor who we shall have with us always.

Next: “I will do unto others as I would have them do unto me”.

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That is putting Love to work. Thereafter, the people labour to keep Love at work.

Those are the first essential steps on the road to moral, social, economic and political transformation. All generations, (starting with the present) should therefore train up their young in the way they should go: with Love. In time they should likely do the same with theirs. The results of that remodeled ‘Brand Jamaica’ would amaze mankind !

In sum, it is well within the capacity of the Jamaican people to work their way out of the chronic miasma of social and economic misery and eventually “overcome” in the way Martin Luther King meant it – overcome all impediments to civilised human relations by the expedient principles of Love. By the universal practice of those principles we may disarm the gunman, reduce crime to manageable proportions and lessen the likelihood of replicating the emergencies of May, 2010. That would hasten fulfillment of the dream of those who we have made a National Heroine and Heroes. At last.

Live by the concept of One Love and we might one day hold out ourselves to the world as a model of rightly proud, civilized and accomplished people. Fail to and there will likely be no chance of Jamaica ever becoming the “place of choice to live, work, raise families and do business.”

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So now, let all Jamaicans, aspiring to be “one People”, start putting Love to work and thus initiate a sea change in social relations by which only, Jamaicans may co-exist peaceably — through equity and justice, according to law and the Constitution.

One Love!