A recent report by the Independent Commission of Investigations (INDECOM) has taken most Jamaicans by surprise and aroused great anger and outrage in them. But is such indignation warranted? After all the crocodile tears are shed, are the people in Jamaica of African origin better off today than they were during slavery?

INDECOM was appointed by the governor general in consultation with the prime minister and the leader of the Opposition. The INDECOM Act provides that the functions of the Commission shall be to:

a) conduct investigations for the purposes of this Act;

b) carry out in furtherance of an investigation and as the commission considers necessary or desirable:

i) inspection of a relevant public body or relevant force, including records, weapons, and buildings;

ii) Section 30 of the Act requires annual reports to Parliament. Sub-section (4) especially states, “The commission may, in the public interest, from time to time, publish in such manner as it thinks fit, reports relating to…” at sub-section (2) “any particular matter investigated…”

INDECOM’s January to March 2020 report included the case of Noel Chambers who had been in prison for40 years, detained during the governor general’s pleasure. INDECOM launched an investigation in the death of the 81-year-old at Tower Street Adult Correctional Centre (TSACC). Chambers was incarcerated on February 4, 1980 and had not been tried as he had been deemed unfit to plead to a charge of murder.

There seems to be some confusion at the Department of Correctional Services (DCS) regarding whether or not Chambers was convicted. The commissioner of corrections, in his report to INDECOM, states that, “Noel Chambers was tried and convicted in the Home Circuit Court on February 4, 1980 for the offence of murder. He was deemed unfit to plead and was held at the governor general’s pleasure.” However, in he could not have been unfit to plead and convicted. Indeed, his commitment document by the Home Circuit Court has the words “guilty of” struck out and replaced with “unfit to plead”. This distinction is important as it means the difference between a person with presumption of innocence being indefinitely detained as opposed to a convicted person being so detained.

Twice Chambers received fitness for trial certificates from two different psychiatrists. The first was issued for him on October 10, 2003. It stated: “This inmate has no history of a mental illness. Repeated mental examinations revealed that there is no mental disorder and he is therefore competent to stand trial. He is not on any medication and is not a risk to himself or anyone at this time.”

The date for the second certificate is apparently 2009.

Despite these certificates being prepared there is no indication that they were sent to the court or that he was taken back to court for trial. Chambers’ medical records further indicated that psychiatrists opined that he was fit to plead in 2007 and 2008. Evidence gathered also indicates that attempts by his family members and a human rights attorney to have his case heard in court proved futile. His family grew disheartened with the process.

His medical record shows that on November 4, 2019 he was examined because he was not eating well, had poor vision, and flu-like symptoms. He was admitted to Kingston Public Hospital (KPH) between November 21 and 28, 2019. There is a referral on file from TSACC for KPH dated December 15, 2019 having shown a history of hypertension, diabetes, and cholesterol; however, there is no evidence on file that he was taken to KPH. On the night before his death he was found unresponsive by a medical orderly, taken to KPH, and thereafter was pronounced dead. The cause of death given at the post-mortem examination was acute pyelonephritis (a sudden and severe kidney infection).

At the time of his death he was in a deplorable physical condition. His clothing was filthy and his body showed evidence of chronic emaciation. He was covered with what appeared to be vermin bites, live bedbugs (“chink”), and he showed signs of having bed sores. The overall lack of timely and adequate medical attention, in addition to his indefinite incarceration and poor hygiene, highlight serious breaches of his constitutional rights, the Criminal Justice (Administration) Act (CJAA) and the correctional institution rules.

A comparison

Noel Chambers had lost his freedom, so had the slaves before Emancipation. Was his condition any worse than theirs? Both had been denied the fundamental rights and freedoms of an individual with no access to justice. The people from Africa in chattel slavery were owned by the planters who would see to their health and general wellness to be fit for work. Chambers was not owned, and there was no one concerned about his health and wellness, except his sister, who visited the prison hoping to help him but became frustrated and gave up. No Jamaican should be in a position that can be compared to slavery in independent Jamaica.

Action for all quarters

There is an urgent need for a coroner’s inquest to determine who was Noel Chambers, when he died, and whether there is criminal negligence for his death.

The Corrections Act provides at section 74.(1) that there shall be, in respect of each adult correctional centre, a board of visiting justices, and the minister may appoint for such time as may be specified in the appointment so many justices as he thinks necessary to be members of each such board. Sub-section (2) says all judges of the Court of Appeal and of the Supreme Court and resident magistrates shall ex officio be visiting justices for each of the adult correctional centres in the island. The board of visitors for TSACC had the responsibility for overseeing the care offered and conditions of the correctional facilities. They have the power to make unannounced visits and inspections at the centres in discharge of the responsibility of ensuring proper care and the reporting of the care of inmates and children.

The public needs to know whether Chambers was just one case that fell though the cracks, which would be deplorable enough to demand reparative action. Whether or not, it is important for INDECOM to continue investigations for the public to know if Chambers’ experience is systemic of the treatment afforded by public authorities to fellow human beings that demands corrective action.

Starting from the top with the governor general, where there is a plenitude of power and authority in Jamaica, but all respect, the governor general has no power per se; he acts on the advice of his Privy Council. One would expect the reference of cases for the pleasure of the governor general would immediately trigger a record at the Privy Council for the person detained for his pleasure — a record that would be reviewed from time to time so that citizens would not suffer indefinite detention.

The judiciary is not beyond reproach for a failure to follow up cases that are still on the undisposed of list with inordinate delay in the administration of justice, more so in Chambers’ case where all the judges are members of the board of visitors for TSACC.

Then there is the Office of the Director of Public Prosecutions (ODPP), where there is an indictment for Crawford, a human being, not just a piece of paper filed away somewhere waiting for what they should know justice requires.

It is clear from INDECOM’s report the officials at the correctional centres need further training. It would not be too harsh to recommend that no public official should be allowed to go on leave or on retirement until the work assigned to him or her is completed; and the cases ought to be completed in a timely and humane manner and with due regard for the dignity of the individual.

Taking a panoramic view of human rights violations we now see with dry eyes how we abuse each other physically, legally, and emotionally in interpersonal relationships in Jamaica, especially by organs of the State for the black majority population. This is not a matter of racism, it is more a failure to free ourselves from mental slavery that condemns the offender, the victim, and the community involved (you and me). We must never put up with the denial of equal treatment and equal opportunities for all in full freedom. We must appreciate that Black Lives Matter in Jamaica too, where each man’s death diminishes me.

Frank Phipps, QC, is a member of the National Council for Reparation. The views expressed here are his own and not representative of the council’s.Send comments to the Jamaica Observer or frank.phipps@yahoo.com.