Rights activists make case for stronger INDECOM

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There are fears among members of the community of human rights activists that if the powers granted to the Independent Commission of Investigations (INDECOM) are not preserved it will fall into the same mould as its predecessor, after having managed to do in 10 years what that other investigative body was unable to accomplish.

The rights lobbyists expressed the concern as they bemoaned the departure, last month, of former commissioner of INDECOM Terrence Williams, who led the agency from its inception in 2010, and expressed dread over the outcome of proposals now before Parliament relating to the powers invested in the commission.

Williams, in early May, had indicated that he would not be seeking a third term when his tenure ended in July.

INDECOM has oversight for members of the security forces and other agents of the State, having succeeded the Police Public Complaints Authority, which was a civilian body established to probe allegations against members of the Jamaica Constabulary Force (JCF).

From its inception, INDECOM operated on the premise that it had powers to arrest, charge, and prosecute members of the security forces, until 2013 when the Jamaica Police Federation challenged this practice in the Full Court.

In its judgement, the Full Court ruled that INDECOM did have the power to arrest, charge, and prosecute members of the security forces. However, the police federation appealed the Full Court’s ruling and in 2018 the Court of Appeal ruled that INDECOM did not have the power to arrest, charge, and prosecute members of the security forces.

INDECOM took the matter to the Privy Council, but the London court upheld the Appeal Court’s ruling in May 2020.

In 2015 a joint select committee of Parliament was established to review the INDECOM Act and its operations. Among other things, the committee recommended, consistent with the ruling of the Full Court, that the INDECOM Act be amended to explicitly give INDECOM prosecutorial powers. But Justice Minister Delroy Chuck, in late July, told Parliament that the Administration has reconsidered a previous recommendation to give the commission prosecutorial powers. According to Chuck, the decision was premised on the Privy Council’s May ruling. He however said the Government remained committed to strengthening INDECOM’s investigative powers and capabilities.

But a number of human rights players participating in a virtual reflection on the journey of police oversight in Jamaica and the role played by INDECOM recently expressed concern that this retraction would result in a return to years gone by when instances of police killings and brutality were at an alarming high.

“Those [powers to arrest and charge] were, we believe, the very things that led to or influenced the dramatic drop in the number of excessive use of force, abuse and killings that took place and led us to 86 last year — the lowest we have had in decades,” human rights activist and psychologist Alexis Goffe said in chronicling the instances of killings of civilians at the hands of law enforcement officers over four decades.

Between 1977 and July 2020 there have been over 7,700 people killed by law enforcement personnel (the police, correctional officers, and soldiers) in Jamaica.

“We were averaging about 180 killings per year, and in 2019 it fell to 86, and there has been no year that we can find between 1977 and 2018 that had less than 100. We have to understand, of course, that the 86 is still unbelievably high, but, of course, we do have to acknowledge that this is coming from 357 in 2010 [the year of the joint operation into Tivoli Gardens and the year INDECOM was introduced],” Goffe pointed out.

Noting the 2013 challenge to INDECOM regarding its power to arrest and charge, he said a drastic drop was seen between 2013 and 2014 in the number of police killings, with 253 reported in 2013 and 114 by 2014.

Executive director of human rights non-government organisation Stand Up for Jamaica, Carla Gullotta, asserted that the commission has been getting flak resulting from the Privy Council decision which, she said, did not allow INDECOM to accomplish its work fully. She called for consensus to ensure that the role of the body, going forward, “is not undermined”.

“I would love to pay a tribute to Terrence Williams; he has been leading INDECOM since the day it was born and we know how challenging it has been for him and for the body who have encountered hostility, and it is hard to work when the environment around you is unfriendly,” she said.

“We are not sure what is going to happen, for sure… some elements have been criticising quite sharply, and often, the actions of INDECOM,” Gullotta noted.

“I think we all should take a stand in defending a space which is a blessed space, because it allows for the most fragile ones to find some kind of justice. What is going to happen, nobody knows, but abuses, killing, lack of accountability, have been fought in the past few years restlessly by INDECOM and by most of us. INDECOM is important, we have to make sure its role is not undermined,” she urged.

In the meantime, former head of rights group Jamaicans For Justice Dr Carolyn Gomes is adamant “that there is need for INDECOM to continue to have its powers of prosecution”.

“We need quick, effective action and prosecution to make sure that we take those policemen who breach the law, who kill citizens, to hold them accountable, and this requires INDECOM to have prosecutorial powers,” she stated.

Rights advocate Susan Goffe, contrasting the conduct of investigations prior to the introduction of INDECOM, said the body had changed the landscape for the better and argued for continued fortifying of its operations.

“The investigations that took place before INDECOM came into being… it was very hard to take successful cases before the court, because those initial investigations were so flawed. One was the failure to protect the scene. So there is a killing and there is no cordoning off of the scene for the collection of forensic evidence,, and this means there can both be unintentional contamination of the scene… and so makes it less viable for presentation in court. What we also saw in this lack of protection of the scene was intentional contamination of the scene by members of the police force,” Goffe said.

She said it was common practice for the police to pick up spent shells, remove items from the scene, clean up the scene, and take an inordinate amount of time to dispatch investigators in cases. Also, in some instances, no investigators ever showed up.

“Sometimes it wasn’t just hours, sometimes it was days, sometimes it was weeks, and there were instances in which no one over came to the scene as an investigator to collect any evidence or to take any statements,” Goffe said.

“Now it is a requirement in the INDECOM Act that the police must contact them once one of these incidents takes place. I actually know of cases where by the time the police calls to inform INDECOM that a killing has taken place a resident from the community has long before called INDECOM and the investigators are already on their way,” she told the forum.

She said with the advent of INDECOM there has been more certainty “in the preservation of the scene, the collection of forensic evidence, the trafficking of the chain of custody of the evidence, et cetera, and so it makes it more likely that there is evidence present to support an investigation into what happened at the scene of that death.

“We need to protect the gains that there have been through INDECOM and to keep pushing for the strengthening of INDECOM, not the weakening of INDECOM,” Goffe said.

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