Editorial | The Keith Clarke case

Once it hears the arguments this week in the latest twist over the “good faith certificates” granted to the three soldiers accused of murdering Keith Clarke, the Court of Appeal must act with urgency in delivering its judgment.

Justice for the accused men, as well as the Clarke family, demands it. The soldiers have carried the charges, and the possibility of conviction, for a dozen years. Keith Clarke’s family has borne the burden of his death for 14 years – without any clear sense of when they can expect closure. Their civil case against the government for damages over his death remains stuck until the criminal matter is concluded. And it is likely that if the Court of Appeal rules against the defendants in these hearings, it will not be the end of the issue.

At the same time, given the Holness administration’s consistent use of states of public emergency as a crime-fighting tool, the court’s guidance on the worth and application of “good faith certificates” provided to law-enforcement officials ought to be of value to policymakers.

Keith Clarke was a well-known accountant and auditor. He was uncle to Jamaica’s current finance minister, Nigel Clarke, and brother of another former Cabinet minister and respected entrepreneur, Claude Clarke.

In May 2010, the west Kingston crime boss, Christopher ‘Dudus’ Coke – for whom the United States had issued an extradition warrant for drug and firearm smuggling – was on the run in Jamaica. Mr Coke’s private militia and supporting gunmen, retaliating against efforts at his capture, engaged the security forces in gunfights in west Kingston as well other, mostly gritty, areas of the capital.

DOCUMENTS CHALLENGED

However, one operation reached Mr Clarke’s home in the leafy Kirkland Heights community overlooking Kingston. His family reported that soldiers broke into their home where, reportedly, he was shot 21 times, mostly in the back. His hands, they say, were raised.

Two years later, three Jamaica Defence Force (JDF) soldiers – Corporal Odel Buckley, Lance Corporal Greg Tinglin, and Private Arnold Henry – were charged for Mr Clarke’s murder.

In 2018, nearly four years after their indictment, and as their trial was getting under way, lawyers for the soldiers separately produced certificates, signed two years earlier by the former security minister, Peter Bunting, attesting to the men’s good faith conduct. Mr Bunting was the minister neither at the time of Mr Clarke’s death nor when the certificates were produced in court.

The documents, however, were issued under the regulations governing the state of emergency in place at the time of the Dudus Coke crisis.

Section 45 of those regulations said that “no action, suit, prosecution or other proceeding shall be brought or instituted against any member of the security forces in respect of any act done in good faith during the emergency period in the exercise or purported exercise of his functions, or for the public safety or restoration of order, or the preservation of the peace in any place or places within the island or otherwise in the public interest”.

Further, a good faith certificate to a member of the security forces was “sufficient evidence that such member was so acting and any such act shall be deemed to have been done in good faith unless the contrary is proved”.

Defence lawyers had hoped that the possession of the certificates would be the end of the trial. But Mr Clarke’s wife challenged the constitutionality of the documents and the underlying regulations.

The Full Court held that the certificates, contrary to the argument of the Clarkes, did not infringe the doctrine of the separation of powers and the authority of the courts, or the powers of the director of public prosecutions (DPP) to institute or halt criminal prosecutions. The judges also ruled that while they could be issued, the good faith certificates were rebuttable.

BUILDS CONFIDENCE

However, a majority (2-1) held that the circumstances in which Mr Bunting awarded the certificates – four years after the soldiers’ indictment and six years after Mr Clarke’s death – rendered them unreasonable and unfair and therefore “unconstitutional, null and void, and without effect”.

The Full Court’s ruling was appealed. The Court of Appeal upheld most of the Full Court’s ruling, but struck down the majority’s bit about unconstitutionality of the certificates in the circumstances they were awarded.

The appeal judges also ruled that in this case, judicial review was not the appropriate forum for challenging the certificates. Rather, “a preliminary determination (should) be made by a judge of the Supreme Court sitting without a jury”.

“This is to determine whether the DPP has provided proof to the contrary of the ‘good faith’ asserted by the minister’s certificates,” the Court of Appeal ruled.

Such a hearing, a voir dire, concluded earlier this month with the presiding judge, Dale Palmer, apparently holding that there was a prima facie basis, at least, to entertain the good faith certificates.

So, the case is yet again delayed. Which is not entirely the court’s fault.

Nonetheless, even in its surety, justice’s greater value is also when it is swift and certain. It also builds confidence in the justice system.