Wed | Oct 16, 2019

Terrence F. Williams | Michael Gayle’s legacy

Published:Sunday | August 11, 2019 | 12:32 AM

In our anthem, we pray: “Justice, truth be ours forever.” These words seem aspirational rather than actual. If the tune could carry, they should be reordered to: “Truth and justice be ours forever,” as you must first have truth to foster justice.

August 23, 2019, will mark 20 years since Michael Gayle was murdered by members of Jamaica’s security forces. His death could have joined the unremembered as those who caused his death were never to face a criminal trial, but from this tragedy came one of the most important judicial decisions in Jamaica’s history.

In Michael Gayle v Jamaica, the Inter-American Commission of Human Rights (IACHR) exposed how the Jamaican State, through its agents of force and justice, had been abusing the rights of its citizens and made the recommendations that formed the blueprint of this nation’s attempts to improve.

Michael was stopped at a police and military roadblock. There was a misunderstanding between him and the security forces, perhaps exacerbated by Michael’s mental problem. He was severely beaten by police and soldiers in the presence of their colleagues. This unarmed young man was gun-butted, punched, and kicked. He was arrested on what was later admitted to be trumped-up charges of resisting arrest and assaulting a constable. While in custody, the cruelty of the beating was manifested in severe internal bleeding, which, two days later, led to death from a ruptured stomach.

Then came the investigation into Michael’s death. It was undertaken by the police force’s own Bureau of Special Investigation. State agents took more than a week to provide their accounts. No uniform or equipment was collected for forensic testing. The agents of the State protected each other. A coroner’s jury directed that all present should be charged with manslaughter but none were ever charged. A mother was left in anguish over the murder of her son and the failure of local institutions to have the perpetrators brought to justice.

Now for some truth. Just as with Michael, the victims of security- force abuses are often not criminal gunmen attacking the police. These killings were done in the context of generations of ministerial approbation, the dead being “no angels” or “collateral damage”.

Sometimes, insult is added to injury by the police laying false charges on the victims of the violence. In this way, some policemen may exploit the advantages they have in our justice system to bring charges against citizens without the DPP’s permission. For charges to be brought against the police, the courts would normally not accept it without aruling by the DPP although no law so provided. Thus, the case brought by the police would almost always be tried first, and, even if acquitted, the citizen may have no more stomach to pursue the case against the police. Yet we claim to have equal justice!

Case not unique

Michael’s case was not unique, as impunity for state agents was common as they had it in their own power to render themselves anonymous, and they could expect their ‘squaddies’ to refrain from implicating them.

Jamaica, having denied Michael justice, his family turned to the IACHR. They could do so because Jamaica was a signatory to the American Convention on Human Rights and had agreed to safeguard and secure the right to life.

The State, rather than the perpetrators, would be called upon to answer. In one view, it may seem unfair that there would be no individual accountability for the members of the security forces involved in killing Michael, but, from another view, it was right that the Government be called upon to defend the state of affairs it had created.

It is interesting to recall Jamaica’s defences. It was admitted that state agents had unlawfully caused Michael’s death, but the DPP’s independence was pleaded to explain the absence of charges. This did not impress the IACHR. The constitutional arrangements for the structure of government cannot excuse disobedience of fundamental rights. Rather, government authorities must conduct themselves to safeguard and respect human rights.

Next, the State argued that the deceased’s family could have taken a private prosecution. This could only have been made in ignorance of the impediments to anyone bringing prosecutions against the police. Nevertheless, the IACHR held that the investigation and prosecution should not be left to the families of the deceased, but ought to be the remit of a state authority. Finally, and futilely, the State urged that the matter be dealt with by a local court.

The IACHR found that the State breached Michael’s right to life because of the poor investigation by a non-independent body. The IACHR wondered why all state agents present were not charged at least for neglecting their duty to prevent the harm that was done. Jamaica’s history of very high rates of police-involved killings meant that the country had a burden

to show that police-involved killings were lawful.

The decision recommended that changes be made as to how police-involved killings are investigated and prosecuted. The investigations must be independent and effective. Independence means that the investigator must be from a different agency and command than the state agents whose actions are being investigated. Effectiveness means that the investigator must be empowered to get to the truth.

A month after the IACHR’s decision, the European Court of Human Rights made a similar ruling in Ramsahai v Netherlands. Independent investigation of the police is the new normal.

The mother of Michael Gayle is to be commended for her courage and fortitude. The case was taken to the IACHR by Jamaicans For Justice. The members deserve our respect for taking an interest in public justice when it had no particular benefit to their private interests.

The ugly truth revealed by Michael Gayle’s case was not a secret. The elephant had been in the room for so long that it had become part of the furniture. Jamaica, the nation that championed justice abroad, was not practising it at home.

It is to Parliament’s credit that five years after the IACHR decision, the INDECOM Act was passed and the endeavour to remedy the unjust state of affairs commenced. Although thankful of the desire to remedy the unjust state of affairs, we must question why it took so long, and why, in some respects, it is still being resisted.

What lessons are there to be learnt? That securing and safeguarding everyone’s rights must be the first concern of every state authority. That justice can never be secured by unjust means. That for one person to make a difference when confronted by the obdurate State, he or she must have unencumbered access to independent courts.

Terrence F. Williams is commissioner of INDECOM. Email feedback to columns@gleanerjm.com.