Tue | Aug 14, 2018

FULL TEXT: Witter says Mukulu’s appointment null and void

Published:Tuesday | December 30, 2014 | 5:01 PM

The Gleaner/Power 106 News Centre has received a copy of a letter written by former public defender Earl Witter, asserting that the appointment of Matondo Mukulu as acting public defender is null and void.

In the letter dated December 1, 2014, Witter said he recently found out that under the law, he was not empowered to appoint Mukulu to act for more than two months.

"You should forthwith cease and desist from operating under the colour, guise or pretence of ‘acting’ Public Defender," Witter told Mukulu who has been acting as Public Defender since April 4, 2014.



December 12, 2014

Matondo Mukulu, Esq.

Deputy Public Defender

22-24 Duke Street

Kingston, CSO

My dear Mukulu:

You will know that your 'tenure' as acting Public Defender dangles by slender threads - two letters signed by me in the capacity of public Defender, viz. –

A. one dated on 0r about January 4, 2014, appointing you Deputy Public Defender' on probation for a period of three months in the first instance, but which period may, 0r may have had to have been extended, and,

B. another, dated on or about April 4, 2014, appointing you to act as Public Defender "pending the appointment of my successor, but, subject to the approval of the Commission constituted by the Public Defender (Interim) Act, 2000, S. 11 (‘the Act’).

The former was, and the ratter purports to have been, in the exercise of powers conferred by S. 11 (1) of the Act and ex officio, both yielding to the exigencies.

[Before going further, I want you to know that in writing to you, I am not the interloper you will no doubt think that I am. I do have something of a leg to stand on. For these contents are warranted, if not indeed validated, by the provisions of S. 5 (2) of the Act]

The purported appointment referred to at B. above would depend for any validity, upon the exercise of a discretion conferred by S. 5 (3) of the Act, not the inadvertent resort to power conferred by S. 11 (1), such as there was. (Do refresh yourself from the terms of those provisions. You too will be enlightened, hopefully.) I came to this belated realisation only last Wednesday and, serendipitously, as I sought to advise myself about efforts made by you, if any, to advance and secure completion of the Public Defender's independent investigations related to the State of Emergency, declared in May, 2010. I did endeavour to apprise you of this discovery immediately. But typically, you were "unavailable" and thus not able to "accommodate" me. So be it.

Even if I had resorted to the S.5 discretion, (which I did not I could not validly have made the appointment '... for a period ... exceeding two months....(my emphasis)

In the result -

i. your appointment to act as Public Defender was ultra vires, null and, void, ab initio, it being open-ended and purporting to have been for a period exceeding the two months mandated by ss. (3): your "tenure," it turns out then, dangles not by two but, by a single slender inelastic thread.

ii. you have, but erroneously, been enabled and, have seized upon an opportunity which patently you have perceived, not only to arrogate to yourself all of the powers of a Public Defender duly appointed but, have yourself, purported and, with great exuberance, inter alia:

a. to "rebrand" the Office of the public Defender;

b. to terminate other probationary appointments validly made by me, (one of them to the freshly created and highly sensitive post of Director of Corporate Services) and to substitute and/or make other appointments of your own which, clearly, are as null and void as was my own of you to act as Public Defender;

c. to appoint to the position specifically referred to at b. above, a long serving staff member who had herself been appointed to act in the prior post of Director of Administration but who, despite my urgings, elected not to apply for appointment to the said post and thus undergo the rigours of scrutiny, by the same panel of eminent interviewers which assisted me in determining your preferment above others short listed for appointment as Deputy Public Defender;

d. by your public and in-house utterances and conduct regarded me (on one famous occasion to my own face) in a most churlish and highly disrespectful manner;

e. to have assured me orally, that it had "never crossed (your) mind” that you could seek appointment by His Excellency, the Governor General, as Public Defender but notably, have since resiled from that pretence;

f. have exhibited a propensity for duplicitous conduct (of which there is much evidence) by virtue of which I have come to regard you as untrustworthy and thus, on that basis alone, undeserving of any or any serious consideration by His Excellency for appointment as Public Defender and,

g. in so far as you may have done, insisted that I delegate to you full responsibility for completing outstanding annual reports, regarding the preparation of which I offered my unreserved assistance pro bono publico, (my retirement notwithstanding,) to no avail.

But now, placing all such reliance as I may, upon the provisions of s. 5 (2), I put you formally on notice that you should forthwith cease and desist from operating under the colour, guise or pretence of "acting" Public Defender. Moreover, promptly, publicly and henceforward, do announce your substantive position to be that of probationary Deputy Public Defender and, confine yourself strictly to the relevant job description. The period commencing at the expiry of the probation envisaged by this appointment is, perforce, a de facto extension of your probation.

In all the circumstances therefore, you are rendered bereftof all authority save that encompassed by the Deputy Public Defender's job description.

WATCH: Acting Public Defender affirms, admits apologises

I am provoked by other reasons in writing to you. I shall mention some. The first of them is to express my utter dismay regarding your abject failure, diligently and timeously to exert yourself in causing the ballistic and other forensic work necessary for wrapping up the Public Defender's investigations into the conduct of the security forces and atrocities alleged to have been committed by them during the May, 2010 siege of West Kingston. More particularly, and, to the best of my information, you have -

i. failed, by inappropriate prioritization of work, to require conscientious adherence to the Protocols referred to variously at pp. 54-55 (paras. 37. to 38.1) and pp.138 to 139 (paras. 57.1 to 57.31 of the relevant Public Defender's Interim Report to Parliament dated, April 29, 2013 as well as the consequential forensic tests and examinations: [You need to appreciate that those Protocols are crucial to maintaining the integrity of those independent investigations, which, be it noted, were initiated by the Public Defender. For it is only by virtue of that adherence that the constitutional and international treaty obligations of the Government to determine, inter alia, the vital question of "Who killed who?" during the most cataclysmic event involving Jamaican State security forces in over 140 years (to say nothing of the modern era,) may effectually be discharged.]

ii. demonstrated lamentable dilatoriness and ineptitude in completing forensic assessment of complainants' claims (excluding allegations of extra-legal killings) proffering timely recommendations to the Government for fitting remedy, in respect of those found justified, as contemplated by the Act and the Interim Report ( pp.3-4, para. 1.9)

iii. in contrast to ii. above, ventured "proactively" (as you are wont, pompously to suggest) to focus upon species of investigations selected by you, in charting your own course and failing to pursue other "signature" investigations, which you found pending ( i.e., mindless of the vested interest of continuity, so essential to the work of a Commission of Parliament such as the Public Defender) and lastly,

iv. generated a credible consensus that you have not so much been interested in advancing the work, status and reputation of the Public Defender, by standing on the shoulders of predecessors, as you have waged an unbecoming campaign to win appointment as Public Defender. [You need to be made aware not only that ambition is made of sterner stuff but that the Public Defender, being a commission of Parliament, is no low-hanging fruit waiting to be plucked by you. Further, that it would likely require the most weighty and cogent reasons for investing someone so youthful, with such lack of experience both in law and in life, as are you, with the protection of security of tenure laid down by S.5 (4)of the Act, et seq, - not for what would be a whole generation!)

The foregoing notwithstanding and painful though it is, I do not hesitate to acknowledge full responsibility for the egregious blunder by virtue of which I purported to have appointed you to act as Public Defender. For that error not merely facilitated the unseemly conduct impugned herein but is, admittedly, the proximate and principal cause of it. I shall be seeking to mitigate my error which, in my humble judgment, facilitated that conduct resulting in what amounts to a net disservice.

By a copy of this letter to His Excellency, I most humbly and respectfully recommend resort, so soon as he pleases, to the power conferred upon His Excellency either by S. 4 (2) or S. 5 (3) of the Act.

By another copy to the Honourable Speaker of the House of Representatives and Chairman of the S. 11 Commission, I implore him to assist the process, in any way that the gentleman and his colleagues deem appropriate or desirable.


Earl Witter, Q.C



His Excellency, the Governor General

The Honourable Speaker of the House of Representatives

P.S Please cause this letter to be affixed to your Personnel file.

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