Enquiry a watershed moment, indeed
"Dem [the security forces] a fire an' man a fire back 'cause a war, Miss."
- Kishonna Gordon, second witness appearing before the West Kingston commission of enquiry.
At last the west Kingston commission of enquiry has got off the ground, four and a half years after, that fateful event of May 2010, which left more Jamaicans dead in an action of the State than since the Morant Bay uprising.
Acting Public Defender Matondo Mukulu has described the enquiry as "a watershed moment for a nation that was given its 9/11 moment in May 2010". The public defender may want to be more careful with his language and analogy as 9/11 was a terrorist attack against a state.
But where are we off to? And to what? To another inconclusive circus of starring and warring lawyers like the 2011 Manatt-Coke commission of enquiry that set out to ascertain the circumstances of the Coke extradition and the propriety of the actions of public officials in that matter.
Current commission chairman Sir David Simmons, retired chief justice of Barbados and former attorney general, has admonished witnesses to speak the truth. The commissioners have a greater burden of responsibility to dig out the truth.
We know some of the truth already. The police did not ask Mr Coke to report to the nearest police station as a person of interest. A couple of constables were not dispatched to bring him in, as would be done for most 'ordinary' Jamaicans living in communities accessible to the police. The security forces deployed to Tivoli Gardens met upon barricades and came under gunfire, and media cameras recorded armed men inside the enclave, although Kishonna said she had never seen guns inside Tivoli Gardens.
Scores of Jamaican citizens were killed and others wounded in the ensuing 'war'. The Office of the Public Defender has documented 76 civilians killed and one soldier. We don't know how many of those killed were enemy combatants, were unintentionally killed in crossfire, or intentionally executed by either side.
We know Mr Coke was not apprehended, but was caught weeks later under circumstances that are the subject of an ongoing court case involving his escort.
What is needed to be ascertained are the circumstances and conditions under which the security forces were constrained to conduct the incursion operations, the appropriateness of their use of force, their treatment of both enemy combatants and non-combatant civilians, and the treatment that they received as agents of the State.
The enquiry has comprehensive terms of reference that were the subject of public consultation, the first time, as far as I can recall, that has been done. We should be watching every day's proceedings against the 17-point TORs. The TORs are posted by JIS at jis.gov.jm/media/TOR-for-West-Kingston-COE-2014.pdf.
Here are some selected ones. In the interest of space, I can't include all in the column. The west Kingston commission of enquiry is required "to enquire into:
(a) the situation in western Kingston and related areas in May 2010 prior to the attempt to execute a provisional warrant in extradition proceedings relating to Christopher 'Dudus' Coke, and the reasons and circumstances surrounding the declaration of a state of emergency in that month;
(b) whether, and if so under what circumstances, state officials and law-enforcement officers came under gunfire attacks during May 2010 in incidents connected to the attempts by law enforcement officers of Jamaica to arrest Christopher "Dudus "Coke;
(c) the circumstances under which, and by whom, several police stations and other state property (including police or military vehicles) were attacked and damaged or destroyed by firebombs, gunfire or other means during or around the period of the state of emergency declared in May 2010;
(d) the conduct of operations by the security forces of Jamaica in Tivoli Gardens and related areas during the said state of emergency in the month of May 2010;
(e) the allegations that persons were especially armed to repel any law-enforcement effort to capture the fugitive Christopher 'Dudus' Coke and, if so, by whom;
(f) what were the circumstances under which, and by whom, embattlements and barriers were set up in Tivoli Gardens, and whether efforts were made, and by whom, to restrict ingress and egress of law enforcement officers or to prevent the arrest of Christopher 'Dudus' Coke;
(g) what arrangements were made, and what precautions were taken, to protect citizens in Tivoli Gardens and other affected areas from unnecessary injury or property damage during the law-enforcement action in the state of emergency, and the adequacy and appropriateness of those arrangements and precautions in the prevailing circumstances;
(h) whether, and if so under what circumstances, civilians, police officers and soldiers of the Jamaica Defence Force were shot and killed or injured during May 2010 in connection with the security forces seeking to effect the arrest of Christopher 'Dudus' Coke on a provisional warrant in extradition proceedings;
(j) whether the rights of any person or persons were violated in any of the affected or related communities by either law enforcement officers or by anyone else and, if so, whose rights were violated, and the manner and extent of such violations, and by whom such violations were perpetrated;
(p) the circumstances under which the fugitive Christopher 'Dudus' Coke managed to elude arrest during and after the operations by the security forces of Jamaica in Tivoli Gardens and related areas in May 2010, and the circumstances of his capture."
Media should play a vital role here in 'guarding democracy' in not only transmitting the drama of the hearings, but keeping the TORs alive in the public view and assessing progress towards satisfying them.
The various parties involved have vested interests in telling lies. It is the business of the commissioners, not the lawyers, to elicit the truth.
With respect to "the situation in western Kingston and related areas in May 2010", we already know Tivoli Gardens to be a Jamaica Labour Party "zone of political exclusion" with very strong loyalties to 'Dudus', who many residents had publicly declared their willingness to die for and who made the community "run cool".
The party, now actively "supporting" Tivoli Gardens residents as witnesses, can only reasonably be described as actively obstructing the establishment of the commission of enquiry in the past, and it potentially stands to be damaged by disclosures.
Both the JCF and the JDF, while welcoming the commission of enquiry from its announcement by the Government last year May, hiding in the fog of war, are going to want to present themselves as having tempered the iron fist with the velvet glove and having played by the international rules of engagement applicable to the circumstances of the incursion.
Lloyd D'Aguilar, convener of the Tivoli Committee, an advocacy group he formed for residents, who has recklessly and foolishly provoked being barred from the enquiry even as an observer, believes that war crimes have been committed for which operatives in the security forces and responsible leaders of the then Government should be punished under international law.
The commissioners, functioning under the powerful Commissions of Enquiry Act, which has been even more powerful with amendments in 2013 in the aftermath of Manatt-Coke, must dig for the truth and provide definitive and concrete answers to the points of the terms of reference.
While I am very much in favour of public hearings, this commission should extensively use the provision for private hearings, particularly for residents of western Kingston who may have truths to reveal but must return to their communities with its long and deep history of enforced loyalties.
This is, indeed, a watershed moment.