Thu | Jan 17, 2019

Editorial | JDF should publish its Keith Clarke report

Published:Friday | April 20, 2018 | 12:00 AM

Neither surprisingly nor unreasonably, Peter Bunting is being battered for signing, six years after the fact and on the eve of a general election a declaration to the effect that the three soldiers accused of murdering Keith Clarke acted in "good faith", with the aim of restoring order and peace during a period of public emergency.

Mr Bunting's certificates of immunity, if they hold their legality is likely to face a judicial challenge will effectively end the case against Corporal Odel Buckley, Lance Corporal Greg Tinglin, and Private Arnold Henry, unless it can be proven that the "good faith" assertion is patently without merit.

That the soldiers could be freed on the basis of a stroke of a pen by a national security minister, rather than through the full proceedings in a court of law, doesn't sit well with many Jamaicans. Mr Bunting hasn't done a good job in addressing the legal and moral issues raised by his actions, including the considerations that informed his decision.

But the former minister, as this newspaper has argued before, is not the only one who needs to address the matter. So, too, does the Jamaica Defence Force (JDF), which, presumably after an internal enquiry, which we hope was rigorous, requested the certificates of immunity.

Peter Bunting was not the minister, and neither did the administration in which he served form the government at the time of the declaration of the 2010 state of emergency as part of a security operation to arrest, for extradition, the politically aligned Tivoli Gardens-based crime boss Christopher Coke and to quell his private militia.

The regulations that governed that state of emergency exempted members of the security forces from "action, suit, prosecution or other proceeding" for "act(s) done in good faith ... in the exercise or purported exercise of ... (their) functions or for the public safety or restoration of order or the preservation of the peace in any place".

Keith Clarke, a well-known accountant and auditor, was killed at his home his body riddled with the bullets of high-powered weapons and the house pockmarked from gunshots during what the authorities claim was a raid to capture Coke. There was much controversy over the circumstances under which Mr Clarke met his death, as well as claims that the army placed roadblocks in the way of a civilian investigation.

It was only in 2016 that Mr Bunting, who became the minister two years after the state of emergency, signed the certificates of immunity. He has said it was only then that he was asked to do so. What is not clear, however, is the depth of the legal advice Mr Bunting took and whether that advice said, taken into account all the circumstances, he was obligated to issue the certificates.


Did JDF make the case?


We assume, nonetheless, that the JDF would have had to make a case to the minister, including credible findings from military investigators, that would have caused the then chief of defence staff to conclude that the three soldiers acted in good faith and were deserving of certificates to this effect.

If the Full Court were to rule that the ministerial certificates issued by Mr Bunting are legal and binding, it would be a high bar for prosecutors to prove that they actually operated in bad faith. And in the absence of transparency, the already high levels of distrust for officialdom would only increase.

The JDF, though, has the highest level of trust among Jamaica's institutions. It ought not to jeopardise that. It would be in the interest of the army, therefore, to publish the report of its enquiry, appropriately redacted where necessary, because of national security concerns. It should be encouraged to do so by the minister of defence, who happens to be the prime minister.