Open Letter to INDECOM Commissioner Terrence Williams: Break your silence: Are you investigating the 2010 Tivoli Gardens Massacre?
Dear Terrence Williams,
I am shocked at your silence during the relentless attack upon INDECOM by lawyers and police officers at the West Kingston Commission of Enquiry claiming that your office stymied their investigations into allegations of police killings arising from the 2010 Tivoli Gardens Massacre. The constant refrain is that they turned over their files at your request to INDECOM.
Consequently, the police have been able to get away with the claim made by Owen Ellington and other commanders down the line that no wrongs were committed by the police and if there were any wrongs only you can answer that question. The fact that you have allowed them to get away with that raises questions as to whether your office is in compliance with what is clearly a ruse.
Why? Because common sense tells us that their investigations were going nowhere in the first place and your investigations can be going nowhere either.
The honest and prudent thing for you to do is to tell the nation the truth — that the JDF and JCF commanders deliberately ensured that forensic, ballistic or other types of evidential material were deliberately compromised (wearing of masks also) to make it ABSOLUTELY impossible to bring charges against any individual policeman or solider. That is the stock in trade for the policy of covering up police extrajudicial killings and to exonerate commanders of any responsiblity.
These commanders have said it repeatedly at the hearings: they were fighting a war, they were conducting a counterinsurgency operation. There is no army that is going to be treating a war zone as a crime scene.
The Tivoli Committee has urged you from the very beginning to use your legal, intellectual and other energies to pursue a far more credible line of investigation into the commanders’ command responsibility for crimes against humanity committed in 2010.
You did not seem to understand or agree with that approach then, but surely it must be now be clear to you after months of the Commanders exposing their culpability and ‘buck passing’ tactics before the nation that this is the correct approach to take . Your silence or inaction can only be interpreted as acquiescence. This is unacceptable.
Contrary to international law, our own Terrorism Prevention Act and the police’s “Use of Force and Firearm Policy” commanders (including civilian commanders such as Bruce Golding and Dwight Nelson) cannot evade responsibility for crimes committed by passing the buck.
We, therefore believe, that the time is long overdue (five years) for you to issue a policy statement on the matter, and to be honest with the nation about your so-called investigation.
The people are not prepared to accept another whitewash Enquiry. The victims demand that the commanders be held criminally liable, and that there be reparations and compensation.
Jamaican government must provide comprehensive Reparations and Compensation to victims of 2010 Tivoli Gardens massacre
April 6, 2015
DEAR PRIME MINSITER, The Hon. Portia Simpson-Miller
Minister of Justice, Mark Golding
Attorney General, Patrick Atkinson
THE TIVOLI COMMITTEE writes in relation to the issue of Reparations and Compensation due to the victims of the security forces counterinsurgency operations in Tivoli Gardens and West Kingston in May 2010.
As you are aware, the former Public Defender Earl Witter, based on his investigations (688 complainants), recognized a list of crimes committed by the security forces which included personal injury, battery, assault, malicious damage to real property, malicious destruction of personal property, looting, torture, illegal detention, and, of course, extrajudicial killings.
In addition, there are many persons who suffered psychological trauma and are still suffering. Notably, this includes children. There are also persons who suffered injuries and have had to bear the burden of expensive medical care.
During the operations the security forces commandeered the residences of many persons which they used for their own purposes. According to the Constitution and the Emergency Powers Act, compensation is mandated as a remedy for forceful acquisition of property.
In light of what was clearly a gross abuse of human rights, adequate Reparations and Compensation to assist the victims to rebuild their lives and address the damage and injury suffered, is urgently needed. The Tivoli Committee requests that the Government of Jamaica delay no longer in addressing these very important issues.
This request is consistent with provisions under International Law which set out a duty to provide Reparations and Compensation to the victims. Such provisions of International Law include:
* The Universal Declaration of Human Rights – Article 8
* The International Covenant on Civil and Political Rights – Article 2 and Article 9(5)
*The United Nations Convention Against Torture – Article 14
*The Convention on the Rights of the Child – Article 39
* The Rome Statute of the International Criminal Court (ICC) –and 75
·\ * Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Adopted and proclaimed by UN General Assembly resolution 60/147 of December 16 2005)
The Government of Jamaica should be guided by best practices of other governments such as the British government which apologized to the victims of Bloody Sunday, and provided Reparations and Compensation. In this example, the apology took decades but the compensation started within two years. There is no reason why after five years the Government of Jamaica should not now be ready to apologize, to accept liability, and to engage in a process that ensures adequate Reparations and Compensation.
It is clear to us that the West Kingston Commission of Enquiry was not tasked with examining the issue of Reparations and Compensation, as perhaps it should have, and, unfortunately, will not be able to provide any meaningful recommendations.
Term of Reference (q) is concerned we believe with administrative matters. It seeks to enquiry into:
“whether monies, benefits or compensation were provided by the State [under the Golding administration] to compensate residents of Western Kingston including Tivoli Gardens and, if so, how much was actually paid or distributed, the manner and recording of such payment or distribution, and the adequacy of such compensation.”
The Tivoli Committee submits that these questions should properly be addressed by the Ministry of Labour and Social Security (MLSS), the Ministry of Finance, and the Ministry of Housing, which have all the relevant records.
Because the Commission is unable to adequately address the issue of providing immediate Reparations and Compensation to the victims, it is our submission that the Government should not wait until the conclusion of the Enquiry to address this very important issue. There is no reason why Reparations and Compensation cannot be addressed concurrently by an independent Government panel.
The Tivoli Committee therefore respectfully requests that the Government immediately:
1. *Formally accept liability as the Golding administration implicitly did with its partial, ex-gratia payments to some residents. [Specific claims have been presented by the Public Defender on behalf of some victims].
2. *Formally acknowledge that under International Law the government has the duty to provide redress and reparation based on multiple International Law treaties and conventions as listed above.
3. *Appoint a State panel, tasked with instructions based on the above principles to comprehensively address the matter and arrive at the appropriate forms of Reparations and levels of Compensation.
4. *Accept that negotiations and discussions must involve a representative body of the victims. The Tivoli Gardens Reparations and Compensation Committee is ready and willing to assist with these negotiations.
Finally, we implore the government to take its responsibility to the victims seriously and to have the matter resolved in a timely manner. The victims are eager to move and with their lives but cannot do so without the Reparations and Compensation to which they believe they are entitled. With the 5th anniversary of the incident approaching, the victims look to the Government to take immediate steps to ensure that the Reparations and Compensation due to them are not delayed any longer.
We look forward to your response.
on behalf of the
Tivoli Committee, and the
Tivoli Gardens Reparations and Compensation Committee
Open letter to Director of Public Prosecutions (DPP) Paula Llewellyn: Break your silence on the 2010 Tivoli Gardens Massacre
DEAR Director of Public Prosecutions, Paula Llewellyn,
AT least 76 people were killed in 2010 during the security forces operations in Tivoli Gardens/West Kingston and nearly five years later the Bureau of Special Investigations whom you rely on for criminal investigations has yet to present you with a report for possible prosecution.
We assume that you would have read the Public Defender’s Interim Report which concluded that at least 45 people may have been the victims of extrajudicial killings by the security forces.
A Commission of Enquiry has started a public hearing and your Office is conspicuously absent, suggesting that there is no interest on your part in being able to form an independent opinion about these allegations of extrajudicial killings.
One would have assumed that you are aware that under the Terrorism Prevention Act (TPA) civilian and security forces commanders can be tried for facilitating terrorist crimes where their actions (or omissions) did not abide by International Humanitarian Law.
Section (2) of the TPA says that “This Act shall be interpreted and administered so as to ensure Jamaica’s conformity with its international obligations, while protecting the fundamental rights and freedoms guaranteed by the Constitution”. And, as to emphasize the above, Section (3) says that “An offence under subsection (2) does not include (a) an act or omission that is committed during an armed conflict and, at the time and in the place of its commission, is in accordance with international law applicable to the conflict.”
In light of your silence, are we the public to conclude that this is because like Dorothy Lightbourne, you don’t read newspapers, watch TV or even read reports such as prepared by the Public Defender, and that you are ignorant of laws designed to protect the people from State terrorism?
Whatever the reason, we are publicly calling on you to give a prompt explanation for your silence on the 2010 massacre and to say whether your office is prepared to use the appropriate sections of the TPA to bring charges against those commanders responsible for terrorist crimes committed against residents of the area.
Should you chose to remain silent this would only be further proof that a just resolution can only come about by the matter being referred to the International Criminal Court.
Consequently, it is the public’s duty to pressure the government to refer the matter to that body. Impunity is the policy and practice under the Jamaican criminal justice system. It is time to end this criminal policy.
THE outrageous decision by the Chairman of the West Kingston Commission of Enquiry, Sir David Simmons, to prevent me from exercising my constitutional right to attend a public hearing, as a citizen of Jamaica, has brought into question his judicial fitness to lead an enquiry into allegations of constitutional and human rights abuses by the state.
It was not sufficient for him that I accepted his biased December 8, 2014, ruling that I would not be allowed to participate in the proceedings . It was not sufficient for him to be reminded that I had a constitutional right as a citizen to attend a public hearing.
No, the Chairman wanted an apology from me for having exercised my right to freedom of thought and freedom of expression. He is outraged because I made critical remarks in a newspaper article about the direction of this commission of enquiry. His response is to embark on a personal vendetta against me. It is hard to believe that this gentleman is a former Chief Justice of Barbados and not some petty tyrant.
The Chairman refuses to accept that the basis of my so-called outburst stemmed from his arbitrary, unfounded and biased ruling to prevent me from fully participating in the Enquiry, which is not a trial. Without realizing it, he quickly fell under the spell of clever security forces lawyers, and there he has remained ever since.
The Chairman’s contempt for democratic rights was further displayed for all to see when he ruled that he would not allow me into the enquiry as an observer (which is my constitutional right as a citizen); nor on “these premises” which seems to extend way beyond the territorial bounds of his imperial powers.
His reason for such a broad, imperial ruling was that he was not convinced that there would be no more outbursts from me! Shockingly, the implication of that ruling is that the Chairman subscribes to the notion of preventative punishment which has no legal foundation in Jamaica or Barbados and is antithetical to the essence of a free and democratic society.
This ruling is tantamount to the police deciding that they have the right to arrest someone, not because they have committed a crime, but because they suspect that the person may commit a crime. Does this sound like what happened in May 2010?
The stated basis of this ruling that I didn’t apologize (punishment) and to prevent me from committing a further outburst — is nothing less than an assault on my constitutional rights. Does this sound like what happened in May 2010?
I now clarify: the Chairman has proven himself to be a farce and a legal hack. Don’t hold your breath expecting his report to produce anything beyond his obviously limited intellectual and legal capabilities.
TELL us how long you have known the Dudus Coke family and how long you have been around them etc.
I am around the family for over thirty-odd years. His sisters and I were friends and I get close to the family. And just stay there with the family. I was like a daughter and a sister of his
LLOYD: So you would have known him as a little boy
SHARON: As a little boy coming up from Chin Loy Basic School, Denham Town Primary from where he passed and went to Ardenne High. He grew up in the community as a decent youth. Very principled. Deal with order properly. So I have nothing bad to say about him.
LLOYD: Did you know his father Jim Brown? Tell us what you know?
SHARON: Well don’t know much about Jim Brown. I was pretty young at that time.
LLOYD: Was he close to his father?
SHARON: Yes very close. Very close to his dad. Had a good relationship with his father.
LLOYD: And his father lived here, and so on?
SHARON: Yes. And he visited him every day, because he was living in Denham Town while the father was living here. And he was very close to his father.
LLOYD: What about when he died?.
SHARON: I remember when he died in prison. The same day when his son was buried. Later on after the funeral we got the news that Jim Brown had died in prison.
LLOYD: And how did the people take it?
SHARON: Very sad. Weeping and moaning in the community.
LLOYD: So the people loved him?
SHARON: Yes. From the father to the son. Love all over. His name can’t stop call. Every day you have to call Dudus name. Every day the people cry out for him because the community almost mash up without him. I’m talking about Jim.
That’s why they chose Dudus to take over after his father died. Because of the love and the caring that his father showed to the people of the community.
LLOYD: So how did they chose Dudus to take over
SHARON: They just say from Jim Brown to Dudus. No choosing didn’t go on. The crowd just cover him the same day and say Dudus is the man.
LLOYD: So when everybody saying Jim Brown was a bad man. And Dudus was a bad man. What do you say?
SHARON: I don’t see why they should say that. I don’t know why they should say that. I don’t see anybody getting harmed. He doesn’t cause people to fear him. He was loving. The littlest child could go to him.
LLOYD: So when they say that there was a torture chamber and they were torturing people.
SHARON: That’s just rumour. That’s just rumor. Rumour. Just politics. The other Party draw those cards on him. Just rumor. Nothing like that.
LLOYD: So as far as you know there was no torture chamber
SHARON: No, you can look around the place. We didn’t have any torture chamber. Nothing like that.
LLOYD: Because after the incursion they found a place where they said they found blood and that torturing was going on.
SHARON: These men always keep dances. So whenever they keep dances they kill their goats, they kill their hogs, and look after their things. So any blood they found must be blood coming from the people who the soldiers killed, that they came in and found. No torture chamber was here.
LLOYD: So you don’t believe that at all.
SHARON: No no no. I can swear.
LLOYD: They also said in the court documents that Dudus used a chain saw and cut a man in two.
SHARON: Nothing like that. But the man technically told a lie on himself. Because when the judge ask him where on Dudus was the blood when he sawed the man, he said the blood was on Dudus’ feet. And if you use a saw and saw a man, all over you would be sprayed with blood. So that’s stupid.
LLOYD: So the man was telling a lie on Dudus?
SHARON: Lie. Yes. He was lying. We know him too a little youth who grew up in Denham Town. So I don’t know why he would do that.
LLOYD: You wouldn’t deny that Dudus had a little army inside here?
SHARON: A little army? Not really. The people love him and the guys stick around him. He give them business to start. A little hustle. He didn’t have any army to say bad man around him. Nothing like that.
LLOYD: Did he give them guns?
SHARON:No that I know of. But you know every garrison carry gun. Sometimes it come in by politicians, you don’t know how it come. He is not going abroad to buy gun and carry it to distribute. He gives men money to buy goods and go and hustle, and take care of their kids.
LLOYD: But you wouldn’t deny though that there were men inside here with guns?
SHARON: I wouldn’t deny it. As I said before guns are all over the garrisons. Anywhere in Jamaica you find guns.
LLOYD: So guns were in Tivoli
LLOYD: Tell me about the barricades that they set up. Media made a lot of it. So did the military.
SHARON: I don’t know much about the barricades. I don’t know why. What reason why.
LLOYD: But you saw the barricades?
LLOYD: Where and where were the barricades
SHARON: To the entrances into Tivoli
LLOYD: Do you think these were effective barricades
SHARON: No just little board and old pans and anything could just draw them out of the way. No extraordinary things, like fighting a war. Or anything like that. Nothing like that. Little zinc and board. Old fridge in the street which could be easily pulled away. We didn’t barricade in like it was an army we were going to fight. Because we couldn’t fight the army.
LLOYD: Did you have any gunmen on the loose, or anything like that?
SHARON: Nothing like that. Nothing like that. No man had a chance to fire a shot at the army or the police force. They came in on us so sudden. Everybody had to find a place to run. The majority of men who got killed was their doors they kicked off, going inside the house, dragged them outside and killed them. They were never in any shoot out and man dying and man firing shot. Nothing like that.
LLOYD: So you know of no gunmen who died who were firing shots
SHARON: No nothing like that. The majority of the people who died, they kick off door, pull them out of their house and kill them, sometimes in front of their mother. A little youth who lived in the house over there they killed him right in front of his mother inside the house. Right in front of his mother, his baby mother, his sister and about six more ladies and his son. They just kick off the door and go in and kill the youth in front of his parents and tell them that they can’t cry. Them deal with it a way.
LLOYD: When you say majority that means there was a minority who died another way.
SHARON: Because you had people on the street who died from gunshot catching them. It is not shootout. You have people walking and the snipers would shoot them. Because you even had a girl around there who when the helicopters saw here they dropped a bomb where she was and burn her up. So is not say that the people and them were at war. Because everybody who not lock down run. They killed one guy on my building. They went up to the last floor. A little half crazy youth. They just go in the house and kill him and draw him down.
LLOYD: When Dudus was in lockup he wrote his mother a letter. Tell us about the letter that he wrote?
SHARON: It was her birthday coming up and he wrote her that letter. And telling her how much he loved her and wanting her to have a happy birthday.
LLOYD: How did she feel about it?
SHARON: Well, she died the Wednesday and we received the letter the Thursday. So she didn’t get to read the letter. I didn’t get to read the letter to her.
LLOYD: So when Dudus left Ardenne High School did he ever have a job, or did he just live here in Tivoli?
SHARON: NO. He joined with other people and do business. Like sending his girlfriend abroad. Buy and sell. His mother was also a higgler. He use to control that side of it and buy the goods for her and sell.
LLOYD: So you miss him?
SHARON: Very much. Today I would not be hungry. He was there for poor people. Always there for us. He schooled my son. Send him to England to study. And now he passed out as a journalist.
LLOYD: Dudus called .. what did he say?
SHARON: No call .. when his mother was here, he used to call and we all talked to him.
LLOYD: What did he say in terms of how he felt about the whole thing?
SHARON: He said it is a part of life. He said we have to just have faith because one day we will see him again.
LLOYD: Was he angry with Bruce Golding?
SHARON: No he is not that type. He just take everything with a smile. He is just humble like that.
LLOYD: Do you think Bruce Golding betrayed him?
SHARON: If he betrayed him? Yes he betrayed. Bruce Golding and his PNP friends.
LLOYD: But Bruce was defending him for a long time. He was refusing to sign the extradition warrant.
SHARON: He only was pretending. Or else he wouldn’t give up in the end. Because if you are defending somebody you defend them to the end. So he was only pretending in the first part.
LLOYD: So Bruce Golding was only pretending
SHARON: Pretending or else he wouldn’t give up. No.
LLOYD: While this was going on did you talk to Dudus about it.
SHARON: Yes we talk to him. Right through because he had to cheer up his mother. He didn’t’ want her to hear all the news coming over the radio because it would affect her pressure. So I always talk to him and cheer him up and tell him to pray. Because he is a man who really believes in God.
LLOYD: Did he think that they would eventually sign the warrant
SHARON: He always says “Mama. All of what you are hearing is only rumor.” He never really took it serious. He didn’t believe it would happen
LLOYD: How come?
SHARON: He never took it serious to me.
LLOYD: What do you know about the relationship between him and Bruce?
SHARON: Good relation going on. He would normally sit with him. Talk with him. When a meeting is going on he is always there around him and his friends. So I don’t know how this could happen.
LLOYD: Bruce would come down here and meet with Dudus?
SHARON: Bruce Golding and Dudus always had a good relationship. Always. He is always there on every last Thursday. Meet the people in the community. Anything they need they go to him. He would call over Dudus and they talk. He even go over there on the corner sometimes when is here and talk to the men.
LLOYD: So Bruce Golding would walk over to the Presidential Clique office?
SHARON: He always walk over to the Presidential Clique office and the two of them would have a talk. I don’t know what is their issue. But they always talk.
LLOYD: This talking would go as far as up to when? How close to May 2010? What is your recollection?
SHARON: It go on up until about – even in May they talk.
LLOYD: He came here and talk to Dudus. You see it with your own eyes.
SHARON: Yes Yes yes
LLOYD: So Bruce is lying then because he said at the commission of enquiry that he had broken off speaking relationship with Dudus from 2008 because he didn’t act on a Security Forces request to expel some bad men in Tivoli
SHARON: I don’t know of that.
Either try the Commanders (civilian and security forces) of the Tivoli Gardens Massacre under the Terrorism Prevention Act or refer the matter to the International Criminal Court. In either case we demand that justice MUST be done NOW
NO lesser a person than Jamaica’s ambassador to the United States, Stephen Vasciannie, is of the opinion that Jamaica’s sordid record of police extrajudicial killings cannot be an accident. Not only does commonsense suggest that they must be deliberate, there is now police testimony confirming that these so-called shootout-killings are often planned at levels higher than those who pull the trigger.
“That (police executions) cannot be done by any likkle policeman at any likkle rank. That has to be ordered [at a higher level],” explained the ex-policeman, who told stories of how he saw alleged gangsters executed in a rural area prone to migrating gangsters from Spanish Town, St Catherine, and its environs. “If any likkle police try that, he is on his own when INDECOM (the Independent Commission of Investigations) and dem people deh start come down on him. If the (senior officer) order it, him know how him will take care of the report on the incident already,” continued the ex-policeman, who asked that details of the actual events be kept off the record for fear that he would be identified and targeted by his former colleagues. (Sunday Gleaner January 19, 2014)
According to Vasciannie, “there is considerable scope for the view that police killings represent a fundamental breach of the right to life, with such killings being perpetrated as part of a deliberate scheme for the destruction of persons perceived by the State as criminal elements.” (Human Rights in Jamaica: International and Domestic Obligations)
The Jamaican political ruling class, including prime ministers and ministers of national security, have encouraged this policy over the decades, mostly with a wink and nod but sometimes explicitly.
This then is the background to the challenge of holding anyone accountable for the 2010 Tivoli Gardens massacre. Since individual soldiers and policemen were assured of impunity, in that they cannot be identified, the spotlight logically shifts to those who ordered or commanded the killings. The evidence of culpability is mountainous where the commanders are concerned, but the problem is: how do we get these same State officials to put themselves on trial for crimes which have their finger prints everywhere.
In 2001 the government of the day signed the Rome Statute of the International Criminal Court (ICC), though it has yet to ratify the Statute into Jamaican law. (The fifteen year delay cannot be accidental either).
Among other things, the ICC was set up to prosecute criminal commanders for war crimes, crimes against humanity or genocide when national courts or judicial systems are unwilling or unable to do so. Or, if mandated by the UN Security Council.
Since the Jamaican government did not ratify the Statute (Mark Golding says that legal drafting is taking place), the ICC cannot on its own initiative intervene in a matter such as the Tivoli Gardens massacre. However, under the Rome Statute, Article 12(3), the government as a signatory can refer the matter to the ICC. The problem is, that there is no sign that the government is prepared to do so without public pressure.
As many as 200 people may have been killed by the security forces in the 2010 operation, but it is impossible to charge any individual soldier or policeman for the crimes committed because of the deliberate tactics of destroying evidence. Not only did most soldiers and police wear masks to conceal their identity, but there has been court testimony to the effect that the police high command gave specific instructions for there to be no record keeping of guns and ammunition issued. They were obviously thinking ahead. This was admitted to by the police during the trial of Livity Coke, brother of Christopher Dudus Coke.
There is also another woeful tale of deliberate mishandling of dead bodies in order to degrade the value of any forensic evidence. Not to mention the burning and unauthorized burying of bodies which the State has never properly investigated.
All of this was part of a deliberate attempt to ensure impunity for what was a plan to treat the entire Tivoli Gardens, west Kingston population — women and children included — as enemy collaborators and to inflict punishment. This was a classic counterinsurgency operation of a criminal nature.
Under international humanitarian law, civilian and security forces commanders cannot escape criminal liability for what were clearly crimes against humanity or, under Jamaican law — state terrorism (which we will deal with later).
The problem is that the Jamaican State has over the decades refused to accept the doctrine of command responsibility for the actions of those under command. Instead, the State condones violence as a tool of social policy and pretends that the judicial system will or can catch the individual perpetrators, should any laws be allegedly broken. Those who command and or refuse to exercise their command responsibility escape accountability by the practice of this farce.
By having sanctioned such state-terrorist tactics over the years, the State now finds it difficult to admit that 2010 was an extreme manifestation of this form of state terrorism. To put commanders on trial would undermine future reliance on this form of terror.
The only concession to public pressure has been to establish a commission of enquiry which, under normal circumstances, means that no one will be held criminally liable, and certainly not the commanders. This Tivoli enquiry, like previous ones, is designed and intended to produce nothing more than an administrative whitewash or a wrap on the knuckles — assuming that the Commissioners tacitly understand this to be their duty on behalf of the state.
But even so, the Commissioners should not be allowed to so easily pull the wool over our eyes. The broad masses of people want to see commanders held accountable now and in the future. They want to see an end to the policy of state terrorism. They want to ensure that there are no more Tivoli Gardens massacres.
As a gesture to the agitation of the Tivoli Committee, the Commission’s terms of reference include the requirement to enquire into whether the human rights of residents were violated, the “chain of command”, and whether there was “dereliction of duty” on the part of the commanders.
The evidence is overwhelming that gross human rights abuses took place which is in line with the ICC definition of crimes against humanity (“the manner and extent of such violations, and by whom such violations were perpetrated” TOR).
The enquiry into the “chain of command” though vague can only be interpreted as a need to know how the “decisions concerning the operations by the security forces” were arrived at, the actual plan “and the respective responsibilities of each person in that chain of command.”
These matters have to be scrupulously probed to help make the case for command responsibility.
The professional integrity of the Commissioners from here on is at stake. The chairman, a former chief justice of Barbados, is from a jurisdiction that has ratified the ICC statutes. He offers his services as a professional jurist to Caribbean states, and poor Jamaican taxpayers are to now compensate him handsomely for those services worth almost US$500,000. We must ensure value for money or demand a refund.
After getting off to a poor start by deciding to limit my participation as representative of the Tivoli Committee in the enquiry (on very specious, arbitrary and biased grounds) and then showing intemperance by excluding me for protesting this unnecessary and biased decision, the Chairman cannot be allowed to get away with his apparent pro-state approach, no doubt influenced by his more than generous compensation.
Either charge the Commanders under the Terrorism Prevention Act or refer the matter to the ICC.
The Terrorism Prevention Act (TPA) (2005) is clear: The State in any kind of military operation must abide by international humanitarian law or stand accused of committing crimes against humanity, or war crimes. (The DPP is authorized to apply to the Supreme Court to have “certain persons or entities” listed as terrorists.)
Jamaica as a member of the UN is a signatory to both Geneva Convention and the International Covenant on Civil and Political Rights (ICCPR) among other conventions — all based on international humanitarian law. The TPA which was passed in 2005 specifically mentions that the State is not absolved of such crimes if it does not abide these humanitarian laws. The Tivoli operation, by its very design, was a criminal act.
Will the Commission recognize: (a) that crimes against humanity were committed; (b) the culpability of the commanders; (c) will it call for referral to the ICC; or (d) will it invoke Jamaica’s power to try the matter under the TPA? These are the issues and choices facing the Commissioners and we have grave doubts that they have given the slightest thought to these matters.
Nevertheless, despite demonstrable pro-State bias on the part of the Commissioners (ignoring the fact that the matter has to be investigated within the context of international humanitarian law) the Tivoli Committee believes that public pressure must still be brought to bear for them to act as we have described it. By ignoring this position they only help to make the case even stronger that the matter MUST be taken out of the hands of the Jamaican state and referred to the ICC. The Jamaican judicial, political system is incapable of delivering justice to people against whom it has committed gross acts of terrorism.
That is precisely rationale behind the setting up of the ICC. Let us demand that the government either tries the criminal commanders under the TPA or refer the matter to the ICC — without further delay.
THE Jamaican security forces carried out a murderous attack against unarmed civilians in Tivoli Gardens and West Kingston in May 2010.
The then government under the leadership of prime minister Bruce Golding declared a state of emergency which facilitated and legitimized crimes against humanity. These included:
• summary executions
• looting, pillage;
• illegal detentions
To date the State has been slow to investigate or hold anyone accountable for crimes committed, despite an ongoing Enquiry.
We the people who believe in justice and respect for human rights are demanding that the government show good faith by immediately, as is its duty under international law, to make a public commitment to compensate the victims for damage to personal property and personal injuries suffered.
We demand that it takes decisive steps to ensure that a credible, transparent mechanism is put in place to decide on the method and amount of compensation.
We also believe that those who suffered injuries and need ongoing medical care should be immediately taken care of by the State.
Failure to act expeditiously is further proof that the Jamaican state, directed by the present PNP government, condones state terrorism, and thus appropriate international mechanisms should be put in place to cite the Jamaican state and government as a facilitator of state terrorism.
RE: COMPENSATION FOR CRIMINAL DESTRUCTION OF PROPERTY BY JAMAICAN STATE
Dear Acting Public Defender Matondo Mukulu,
I am truly shocked to see in a Gleaner report that after four year and a half years the best that the Office of the Public Defender (OPD) can do re the criminal destruction of people’s property during the 2010 Tivoli Gardens massacre is to submit, cap in hand, a list of 70 out of 700 claims for compensation! This is preposterous. What have you and Earl Witter been doing all this time with the resources at your disposal?
Your Office should immediately produce an analysis of what it spends its time doing?
In terms of your laggard productivity, and flawed approach to the government’s responsibility to citizens who have been wronged by its agents, let me remind you that during the Golding administration the State accepted liability for what was done in 2010 since monies were paid out to some residents for destruction of property and burial expenses. The Ministry of Labour and Social Security (MLSS) sent hundreds of investigators into Tivoli Gardens and so did your Office send investigators.
Did this count for nothing?
Did you seek to find out the legal, moral, and political basis on which Golding made that decision? And if that was valid, which I believe it was, why not remind and advocate that this government is also duty bound to continue along the same path.
The Tivoli Committee has written to you asking for a meeting to discuss how this matter of compensation should be resolved and you have obviously decided not to respond to this request. (So too by the way did your predecessor Earl Witter refuse to meet with us on the matter of the need to specifically investigate the Commanders of the massacre. The current Enquiry is the poorer for this gross omission on his part. Do you as Public Defender also have some sort of fear of the Tivoli Committee?)
Your reasonable but limited claim sheet may very well end up in the waste paper basket of the Attorney General. There is nothing to compel the AG to respond. It is therefore patently clear that it is your duty to PUBLICLY make the case for compensation. This is a legal as much as it is a moral and political one. As the Public Defender, so-called, it is your duty to ADVOCATE on behalf of those who suffer human rights abuses at the hands of the State.
As for resolving oustanding claims the government must be compelled to appoint a public body (encompassing the OPD, MLSS, the Ministry of Finance and people representatives from Tivoli Gardens among others) to establish the principle of compensation and the validity of the claims.
This matter of establishing “adequacy of compensation” is for the Public Defender and others as a properly constituted group to make, and does not properly belong before this present Commission of Enquiry.
We had hoped that you would see the logic of approaching the matter in this way, especially since we are dealing with very poor and marginalized people who have waited far too long for the present government to recognize and accept responsibility for the wrong done to them.
We believe that it is your job to make the case. The time is now.
AUBYN HILL, banker, businessman, raised the question on the IMPACT TV programme as to why it was necessary to have five trade unionists on the National Housing Trust (NHT) board. Under normal circumstances one would dismiss Hill as one of the privileged few (like Lenni Little Whyte), who resents working class scrutiny over their administration of public property.
After all , Hill himself had to answer questions about conflict of interest allegations while involved in disposing of public assets (sugar), as well as propriety and conflict of interest actions while a board member of the Development Bank of Jamaica (DBJ) (the same bank that wrote off 80 million dollars for Lennie Little White and his OUTAMENI Experience).
Unfortunately, the scandalous behaviour of the five trade union members on the NHT board makes it difficult to effectively respond to Aubyn Hill.
Lambert Brown, the president of the University and Allied Workers Union (UAWU), summed it up well for the rest of the trade unionists when he wondered what the fuss was all about since the $180 million purchase of OUTAMENI was done at a profit because the property was valued at 2 to 3 hundred million dollars. Chairman Easton Douglas said basically the same thing.
This type of ignorance (some would call it arrogance) is exceedingly embarrassing for a trade union leader who negotiates on behalf of workers with savvy business leaders and doesn’t understand the difference between asset and profit.
For President Lambert Brown’s information, until this 180 million dollar investment (which at best is what it is) recuperates its cost price plus more, or is sold for more than what is was purchased for, it has not made a profit! And furthermore, it is the market (made up of people who exploit demand and supply) which will determine whether the value of the asset will be realized or not. Until then no profit has been made. Don’t try to pull the wool over the eyes of the public.
The real scandal, however, does not begin with the OUTAMENI purchase. It in fact began with the NHT Board’s 2013 approval of the government’s 45 billion dollar rape of the NHT in order to pay debt to a few privileged Jamaican creditors.
Were the trade unionists just as servile in approving this rape? There is no record of them publicly disapproving it. This approval was the absolute betrayal of the interests of working class Jamaicans. And on this occasion, the ever reliable PNP hack, Lambert Brown, defended it, claiming it was to assist the country’s “economic recovery”!
As for the purchase of OUTAMENI, with five trade unionists on the NHT board, one would have reasonably expected them to recognize this as a bail out for Lenni Little Whyte, that it was not good business sense to take over and try to run a failed tourism enterprise, much more to try and turn it into a profit.
Assuming that they saw their role on the Board as to ensure the building of more housing solutions for working class people, rather than to bail out failed businessmen, we would have expected them to decisively reject the deal and make a public outcry if undemocratic means were used to push through the bailout. All the evidence seems to suggest that this was a unanimous decision and those who were not there — such as Helene Davis White and Kavan Gayle — would have supported it had they been present, according to their own words and actions. They certainly had the option to resign as other Board members have done when they disagreed with a decision.
So why then should we be surprised at the behaviour of these trade union leaders i.e. their absolute lack of working class consciousness .
The fact is that for years they have been approving public sector wage freeze after wage freeze, sometimes called MOUs. They have refused to confront the State over excessively high non-productive consumption expenditures — which include excessive payments to consultants (many of whom are consultants as a political reward), ministerial travel jaunts, million dollar phone bills, luxury cars, posh office furnishings, not to mention million dollar home refurbishings so that Ministers don’t have to live in ‘squalor’. Not even as a token measure, have they ever called for a salary cut for all parliamentarians. Where is the shared sacrifice during this time of austerity?
The truth is that these trade union leaders have been co-opted and incorporated into the state machinery and corporate Jamaica. Their life style is upper middle class not working class, thanks to hard earned Union dues.
There is not a Union that can immediately produce an up-to-date income and expenditure statement as they are legally required to do and as is the right of every dues paying member to see.
Some Unions such as the UAWU no longer bother with regular workers’ congresses in order to elect the leadership as is the right of the members to do.
Such Unions have become proprietary unions as was the BITU under Alexander Bustamante.
All unions are now tools of the political parties. Aubyn Hill was right: What is the purpose of so many trade unionists on the NHT board when they don’t represent working class interests…. unfortunately.