Give INDECOM prosecutorial powers

SIX YEARS ago, a joint select committee of Parliament recommended that the INDECOM Act be amended to assert the power of the security forces’ oversight body to independently prosecute law-enforcement officers who use excessive force against, or otherwise abuse, the rights of citizens.

Two years ago, in 2018, The Gleaner urged the legislature to quickly act on the advice of its committee. We repeat that call, with greater urgency.

Last week, the London-based Judicial Committee of the Privy Council, Jamaica’s court of last resort, ruled that the Independent Commission of Investigations, as a body, had no power to either arrest or prosecute those who it investigates for this category of offences.

“… A power to prosecute for incident offences is not an incident of, ancillary to, or consequential upon the commission’s statutory function, nor does the commission

require such a power in order to be able effectively to discharge its statutory function which, the act makes clear, is an investigative function,” the Privy Council said, upholding a conclusion arrived at in 2018 by the Court of Appeal. “It (prosecutorial powers) would not facilitate the discharge of that (investigative) function or in any way enhance the fulfilment of the commission’s duties.”

Added the law lords: “There is nothing in the 2010 act to suggest that it was intended that the commission should perform any function in relation to the prosecution of incident offences. As a result, the implication of the powers contended for becomes an impossibility.”

The Privy Council did concede that INDECOM’s investigators could conceivably exercise common-law right to mount prosecutions as individuals. However, given the statutory requirement that the agency’s employees maintain the confidentiality of information in their possession, such prosecutions would be almost impossible, the Privy Council noted.

DPP OVERBURDENED

The right to prosecute so-called incident offences, such as abuse and misconduct, is, as of now, the remit of the director of public prosecutions (DPP). This newspaper has no fundamental problem with this falling to the office of the DPP, except that it, as it often complains, is an overburdened department that historically, in the estimation of its critics, hasn’t shown great appetite or aggression for case against law officers or those involving public corruption.

Our greater concern, however, is the possibility of INDECOM being neutered. That requires a reminder of why the agency was established. For decades, the Jamaica Constabulary Force (JDF) had an unenviable reputation for extrajudicial killings and for behaving with impunity. It was horrible at investigating and holding itself to account. Several stabs of having supposedly independent bodies oversee the effort largely came to naught. None, unlike INDECOM, had its own investigators or were sufficiently kitted out with the authority or systems to make a real difference.

One marker of INDECOM’s success has been the significant decline in fatal police shootings in the decade of its existence. In the year of its launch, in 2010, there were 277 police homicides. Last year, there were 86, a decline of 191, or more than 200 per cent fewer police homicides than a decade ago.

This, in the scheme of things, ought to be a good thing, to be celebrated by the constabulary. However, the police, at almost all ranks, bristle at being held to account and not only to the extent of where INDECOM’s powers may have been in doubt.

There, too, have been attempts at using Jamaica’s high crime rate to, putting it bluntly, blackmail the society into accepting a denuding of INDECOM. The argument is mostly framed as INDECOM overreach undermining the morale of the police and giving succour to criminals.

Even as they declare a wish for accountability, it is the wont of Jamaica’s political class to ingratiate themselves with the police. Reform of the JCF has, as a result, been painfully slow.

There is, however, nothing incongruous in having a highly motivated constabulary and one that is held rigorously to account by INDECOM. That is why, like the Integrity Commission, INDECOM should have powers of prosecution and the support of the Government and public in getting the job done without fear or favour. As it should be with the police – within the bounds of the law.