Matondo Mukulu, GUEST COLUMNIST
WiDESPREAD Outrage has greeted the acquittal of Jamaican policeman, Sergeant Lloyd Kelly, who was allegedly caught on camera shooting Ian Lloyd, a man who was comparatively harmless. However, residents of Buckfield, St Ann, where he was shot have breathed a sigh of relief. For them, the deceased was a nasty piece of work, and Jamaica would be better without him.
There are issues of wider public importance that this case gives rise to. The first issue is the role of the State in protecting everyone's right to life and what that really means and demands in practice. The second, and more emotive, is that of whether we need to revisit how we remove a director of public prosecutions (DPP) from office.
The State has a duty to protect our right to life. And if there are instances when a person dies, the State, in pursuit of its obligation to protect life, must have in place an effective system of investigating the cause of death.
It is for this reason why the State has a police force and why it makes laws to create sanctions to deter others from interfering with our right to life.
I have played the Buckfield shooting video over and over and I have come to one conclusion: there was a failure of the State to protect the life of the deceased, Ian Lloyd. While Lloyd was alive on the ground, the State, while pursuing its job of apprehending someone who it was alleged had killed someone, was equally under a duty to bring him to face the court.
While it was clear that he had thrown something at the police officer or had something in his hand, his right to life meant that in apprehending him, the State was obliged to use all reasonable/proportionate force. The proportionality of the force is to be judged by looking at the circumstances at the time.
The victim was at a significant disadvantage and could have been easily apprehended without the need to have been fatally shot. In fact, some would argue that the policeman could have sought the assistance of a citizen or called for assistance from his colleagues.
FAILURES OF THE STATE
So he died. Did the State's obligation in respect of his life end there? Certainly not. The State had an obligation to afford him and his surviving family members an effective investigation into the cause of his death.
We are told that a report was compiled by a pathologist, but this pathologist is no longer working with the State and is not living in Jamaica. But surely he was contactable! The Office of the DPP was obliged to work closely with the police to ensure that steps are taken to get the author of the statement to attend.
Rightfully, the State has passed the Evidence Act, which enables the State to adduce the report at trial in the absence of the author. However, and in an attempt to ensure fairness to the defendant, the prosecution is obliged to demonstrate to the court the steps taken to secure the attendance of the maker of the statement.
The DPP has not made it clear, despite her lengthy statements, what steps were taken to get the doctor to attend, and we were not told if the Crown had made any application to adduce the statement at the start of the trial. These are important questions.
We should not allow the assertions that the deceased was a nasty piece of work to cloud our commitment to what is right. At the time of his death, Ian Lloyd had not been charged with the alleged crime which is now being attributed to him posthumously. In fact, one would love to think that on the occasion of his death, the State was seeking to arrest him.
What we seem to have here is a gross dereliction of duty on the part of the prosecution, which is potentially an infringement of the right to life. Something tells me that there should be an inquiry into this issue. Section 94 of the Constitution, which this DPP is particular is fond of relying on, should not be used to stand in the way of good governance and the adherence to constitutional principles. The State's investigative capability and the system of prosecuting offences are in a crisis, and the minister of justice must step in.
It would seem to me that this latest failure on the part of the ODPP, along with others which are now subject of public knowledge, invites us to give thought to whether there should be a type of review or inquiry into the operations of the office. Of course, I have heard Ms Paula Llewellyn declare how that the office is insulated by the provisions of the Constitution.
DPP EJECTION HATCH
However, I have often read and reread the relevant section and have arrived at the conclusion that the administrative functions of the officer, as distinct from its decisions on prosecution, are not above the scrutiny of either Parliament or the Enquiry Act.
The functions of the DPP are set out in Section 94(3) (a)-(c) of the Constitution and in the performance of these functions she is insulated, and this is the true meaning, in my view, of Section 94(6). However, it does not insulate the office from scrutiny of its operational functions, which do not fall within the ambit of Section 94(3).
My view is further buttressed by looking at Section 96 of the Constitution. The language there is very clear, as it says that if the governor general, on the advice of the PM, takes the view that the DPP should be removed from office, this must be done only if an inquiry is held into her ability to perform the job, and the provisions of the Enquiry Act are applicable or should be followed closely.
The contingent factor that is mentioned expressly is an inability to perform the functions. The Constitution mentions inability of mind or body or inability brought about by any other cause. Surely, this is a reference, albeit an implied one, to capability, as the focus is on the officer holder's ability. Employment law is littered with references to one's ability, and this has always been taken to mean a reference to capability to perform a task.
In the Buckfield case, the ODPP clearly persisted in prosecuting an offence, when on the evidence that it had in its possession, there was no chance of ever getting this case off the ground. This speaks to a level of incompetence and a failure of the State, for which the DPP should be held responsible. Time was wasted in an already overburdened court list with getting a formal acquittal that could have been secured months before.
The DPP should have either used the law to get the video evidence admitted (See case of Toulson), or say to the court, we cannot proceed with this trial. This is what a responsible and capable prosecutor would have done.
I am not one who subscribes to the view that if the office is being ruined or if it is not securing convictions, that Parliament or the State is powerless. This would be a gross dereliction of the State's obligation to protect the life of its citizens.
What took place in the Buckfield case involving the police officer was very disappointing, and it represents a clear breach of the State's obligation to protect the life of its citizens. Of course, I do not hold any grudges against the lawyers who represented the officer, as he was entitled to have counsel use the law to secure his acquittal (even if with assistance from the Crown's perceived failure).
The DPP should not only reflect on her position but she should, without being invited to, make use of Section 96(1) (a) of the Constitution, which makes it clear that she can resign from the office.
I am of the view that while the founding fathers were correct to insulate the position of the DPP in our Constitution, we are at that place now where we need to reflect on whether we should amend sections 94 and 96 of the Constitution. The Constitution is a living instrument, not a dead document.
Matondo K. Mukulu is a practising public-law barrister and attorney. Email feedback to firstname.lastname@example.org and email@example.com.