Give INDECOM the powers

WE NOTE the unanimous decision by the Court of Appeal that INDECOM, the agency that investigates complaints against the security forces, not being a juristic person, doesn’t have the power to arrest or prosecute any person for a criminal offence, but the majority ruled that those rights – afforded to every citizen at common law – are not abrogated to its investigators in the private capacities. Justice Hillary Phillips dissented on the latter point.

The ruling provides, we believe, a legal limbo, which is unsustainable. It requires clarification by Parliament.

The decision is the latest episode in the ongoing tussle between INDECOM (Independent Commission of Investigations) and the Police Federation over the federation’s attempt to blunt what it perceived to be the commission’s overly robust use of powers police officers felt it did not have. In the wake of last week’s ruling, they were partially right – at least with regard to the range of INDECOM’s powers.

There are many people, including politicians on both sides of the aisle, who will welcome this development. In Jamaica’s high-crime environment, exemplified by more than 1,600 homicides in 2017, they accept that INDECOM has been a hindrance to the so-called tough policing they feel is necessary to confront hardened criminals. Indeed, it is part of this narrative that the police have become demotivated by INDECOM’s investigations of reports of infractions by the police, sometimes causing cops to be disarmed, charged and prosecuted for crimes.

That argument, of course, largely plays on people’s genuine fear of crime and implies that even in a democracy where policing is expected to be done with the consent of citizens, a constabulary should not be held appropriately accountable for its actions. Further, it fails to take into account, or rather rejects, the evidence. That is, while INDECOM has indeed taken several police officers before the courts for alleged criminal actions, including extrajudicial killings, only in a small number of cases is disciplinary action either recommended or prosecution preferred. More significant is the sharp decline – though the numbers have been creeping up recently – over the eight years since INDECOM has been in existence.

BORN FROM LACK OF CONFIDENCE

An important fact worth recalling is that INDECOM’s advent was on account of the public’s absolute lack of confidence in the ability of the constabulary, which was perceived to not only be inept but deeply corrupt, to investigate itself. Additionally, other outside bodies that were given the job, which largely relied on the constabulary for investigators, failed.

In other words, communities wanted an agency they could trust to hold the police accountable. An accountable and trusted police force is one in which people can have confidence and to which they are more likely to give support – and information – to enhance crime fighting. In this regard, a strong INDECOM, certain of its powers, is necessary.

We suggest that Parliament – notwithstanding the political muscle of the constabulary, which has translated in declining support for INDECOM – should find the courage to affirm, in statute, INDECOM’s right of arrest. For, as Justice Patrick Brooks noted in observations for the majority, INDECOM Commissioner Terrence Williams and his investigators would have to exercise their commonlaw rights “very cautiously”, given that they would be acting without the insulation of all the powers possessed by a constable.

INDECOM’s right to prosecute, independent of the direction, approval or a fiat from the director of public prosecutions, should be similarly affirmed in law. Such powers are afforded to an independent prosecutor in the new Integrity Commission, in part to ensure that that agency is not constrained by the pace at which any other body may act.