COVER-UP CULTURE
Shoot down police
THE JAMAICA Constabulary Force (JCF) has an unfortunate practice of denying and disputing reports that identify its failings and encourage it to improve, whether it be international or local human rights organisations, commissions of Parliament, or courts.
The West Kingston Commission of Enquiry (WKCOE) released its report in June 2016. It joins other official reviews of Jamaica’s security forces that called for change in the police use of force. Since its publication, the security forces and some members of the public have responded with derision, criticism, and attempts to relitigate the issues. This is not good. Our security forces must learn to resist the urge to be defensive and embrace the challenge to improve.
All of Jamaica must ensure that the time, treasure, and emotions expended in the WKCOE are not wasted. The WKCOE was made up of two outstanding jurists and the leading Caribbean academic on crime and justice issues, all appointed by the State. Evidence was heard from security force and civilian witnesses, and they also heard submissions from counsel representing the security forces and from other interested parties.
Upon immediate release of the report, the security forces, through their counsel, started the campaign of disputing the report. Now, the recent JCF administrative review report has, unsurprisingly, not found favour with the findings of the WKCOE.
The JCF administrative review panel did not examine witnesses or hear any submissions from interested parties, except the JCF. What the JCF administrative review has done is to repeat and rehearse the original submissions of the JCF, which were unsuccessful, before the WKCOE.
GEMS OF WISDOM
Perhaps the gems of wisdom in the WKCOE’s report are lost to most in its volume. It is opportune to remind, or expound, on some of the important findings.
On the standard of the JCF’s investigation into security forceinvolved killings, the WKCOE found: a. The head of the BSI “was in dereliction of his duties to move expeditiously to commence investigations into the locations and deaths of civilians. The JCF should have been well aware of the case of Michael Gayle v
Jamaica, ... where Jamaica was criticised internationally for not taking statements until one week after homicides had taken place”. b. “The processing of crime scenes did not commence until some 10 days later. Once again, this is evidence of weak leadership and a weak system of internal accountability. In addition, there was little after-action written reporting and assessments as a method of accountability and collective or institutional learning.” c. “A failure to maintain internal discipline through the chain of command. When, subsequently, there was no alacrity in systematically investigating complaints of killings or to review incidents as is required by the JCF’s own rules and procedures and international best practice, then, in our view, there is an even greater failure of leadership.” On the supervision by JCF senior officers, the commissioners opined: a. “We are driven to conclude that there was either weak supervision or a supervisory permissiveness that facilitated or ignored abusive conduct towards residents. This was most evident in the JCF.” b. “We heard no evidence of any effort to activate the JCF’s internal disciplinary machinery or to hold constables to account for any form of misconduct.” c. “However, where the prevalence of complaints of extrajudicial killings suggests a pattern of abusive and illegal conduct that was unrestrained by supervision, the pattern may reasonably be considered as a failure of management to adhere to systems and rules.” A central theme of the WKCOE was in identifying the collective command failures and the individual responsibilities of senior officers. There ought to be no need to argue anymore about these things. That was what the WKCOE was there for. Now is the time to improve. The JCF administrative review has made some findings which, with the greatest of respect, are not in keeping with the facts.
Two examples will be related. This is the first example: “6.17 All weapons assigned to the JCF officers who participated in the operation were tested and ballistic certificates issued. All ballistic signatures from those weapons were compared against bullet fragments retrieved from the bodies of the deceased persons, and no match was found.”
The true position, as INDECOM understands it, is that the JCF ballistic expert opined that none of the bullets (or bullet fragments) taken from dead bodies had sufficient markings for comparison with any gun. The best that could be said is that the bullets came from M16s. Thus, no comparison was done. Afterwards, when the bullets were re-examined by another JCF ballistic expert and an international ballistic expert, they opined that around 30 fragments had some chance of being compared if it could be determined which guns were in the vicinity when these persons died.
This task was made impossible by the fact that JCF breaches of its own policies made it difficult for anyone to identify members who were misconducting themselves. Some wore masks, and no nominal roll was made of police officers assigned to particular areas. Further, if the JCF had conducted prompt investigations of the killings, more spent shells would have been collected. Spent shells, when compared to fired bullets, facilitate ballistic comparison. Of the more than 1,500 rounds fired, only 36 spent shells were recovered.
The second example of the administrative review getting it wrong may be seen at paragraph 7.31: “The commission concluded that “a number of persons were probably killed by members of the security forces. This is highly speculative as no credible evidence was led at the enquiry to substantiate this finding.”
MURDERS
A number of civilians and members of the military gave evidence to the WKCOE of unknown members of the JCF murdering citizens. They were publicly cross-examined at the WKCOE. Now the JCF administrative review finds that they are all not credible without even hearing from them.
Where a police force does not acknowledge its failings, reform cannot start. The Tivoli operation graphically demonstrated the need for the JCF to reform to make its members more accountable. An unaccountable police force is an ineffective police force. Lack of transparency and impunity in the force breed all kinds of corruption and unlawfulness. Citizens need to be confident in their police force and in Jamaican justice.
The JCF’s reactions to the WKCOE shows that we still have a long way to go. The WKCOE recommended the administrative review not as an appeal of their findings, but as a mechanism for the force to make internal corrections on the basis of the facts found by the WKCOE. In the law, there is the term
res judicata. It conveys that a decision of a competent court must be respected by the parties. The JCF should treat the findings of the WKCOE as analogous to res judicata. INDECOM agrees with the public defender that this report should be withdrawn. The review ought not to have heard submissions solely from the JCF. They must start over.