Tivoli Enquiry commissioners make recommendation to Gov’t

Commissioners tell Gov’t to pay Tivoli residents

BY BALFORD HENRY Senior staff reporter balfordh@jamaicaobserver.com

Wednesday, June 15, 2016

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The Commission of Enquiry into the May 2010 security forces operation in West Kingston has recommended compensation, without delay, and an apology to residents for some actions of the State agents during the event.


"We recommend that the Government of Jamaica apologises in Parliament to the people of West Kingston, and Jamaica as a whole, for the excesses of the security forces during the operation," the three-man commission, chaired by Barbadian attorney Sir David Simmons, said in its report.


In the report, which was tabled in the House of Representatives, yesterday by Justice Minister Delroy Chuck, the commission, which also included jurist Justice Hazel Harris and criminologist Professor Anthony Harriott, said that this should be done with a view to "assuaging the hurt feelings, bitterness and resentment of the people of West Kingston, and with a view to promoting restorative justice and bringing closure to this sorry chapter in Jamaica’s history".


But, according to the commissioners, even this would not be enough. They felt that there should also be prompt redress by way of compensation for the victims.


"While we recognise that there is a pressing need to bring closure to this matter, and while we are conscious of INDECOM’s continuing investigations, which must not be constricted, we are of the opinion that redress by way of compensation should proceed without delay," they said.


However, the commissioners admitted that they have been advised that formal legal claims against the State for compensation in matters involving injury, loss of life and damage to property are barred after three years, in some cases of death, and after six years in all other cases. This means that it would be too late for people to institute litigation against the State for compensation for personal injuries, death and loss and damage to property.


In the circumstances, they recommended that the State "waive its strict legal rights to all claims" and agree to settle compensation on an ex gratia basis in respect of claims brought by aggrieved individuals, personal representatives and/or near relations and/or dependents of the deceased persons.


They said that they have an assurance from the Office of the Public Defender that it is "ready, willing and able" to facilitate the procedural requirements to obtain grants of representation. The commissioners, however, made it clear that their recommendation for a waiver also applies to claims for loss and damage to property and personal injury.


The commissioners said, however, that the terms of reference require the commission to determine the adequacy of compensation to be paid to the victims, and implies "a willingness on the part of the Government to adequately compensate the victims who suffered personal injuries and property damage.


"We find this predisposition of the Government to be admirable. It is the right thing to do. And it should be done fairly," the report stated.


The report was reviewed by the Cabinet on Monday at its weekly meeting at Jamaica House, leading to a decision by the Government to have it tabled by Chuck in the House of Representatives yesterday. The delay was in order to give time to the ministry to prepare copies for circulation to parliamentarians, the press, and other participating bodies.


Chuck tabled it prior to making his presentation to the House in the annual Sectoral Debate, and compact discs of the 900-page document were circulated.


The minister said that despite Monday’s review, because of the length of the report, Cabinet has appointed a subcommittee to look at the findings and recommendations in detail and to report back to the minister.


Opposition spokesman on national security Peter Bunting noted that there were a number of recommendations relating to the Defence Act and the Jamaica Defence Force (JDF) which ought to be studied more closely.


"I think that there are going to be some very important take-aways for this Parliament to look at amending some of the legislation to reflect the reality of how our military operates in support of policing in ways which were, perhaps, never contemplated when it was established in 1962 and when the Defence Act was passed," Bunting said.


He said that the Government could count on Opposition support in passing those amendments. He also said that the May 2010 activity amounted to "almost an impossible situation" for everyone involved.


The commission also concluded that a total of 69 people were killed during the operation which was aimed at apprehending fugitive gangster Christopher ‘Dudus’ Coke, who was wanted by the United States to face federal drug charges.


The operation was launched on May 24, 2010 after repeated appeals by the authorities for the dismantling of blockades mounted at the entrances to Tivoli Gardens were ignored.


But police and soldiers met resistance from gunmen loyal to Coke, resulting in the fatalities. During the fighting, Coke fled Tivoli Gardens, but was captured weeks later, on June 22, 2010, and waived his right to an extradition hearing.


On June 24, 2010, he was flown to New York and was eventually sentenced to a 23-year prison term in June 2012 after pleading guilty to racketeering.


Sticking to the sentencing guidelines under a plea bargaining arrangement reached between Coke’s defence team and prosecutors in August 2011, Judge Robert P Patterson imposed the maximum sentence, despite last-minute pleas for leniency by Coke himself and his attorney Stephen H Rosen.

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