Findings, recommendations of the West Kingston Commission
A Findings
1.1 Political tribalism was neither an aspect nor a factor in the violence which erupted in Western Kingston during the period May to July 6, 2001. (paragraph 3.21)
1.2 Intelligence available to the security forces on July 6, 2001, indicated that a substantial quantity of guns, ammunition and drugs were present at the Golden Age Home in Denham Town, or its environs and that wanted men were likely to be found in the area where cordon and search was established. (paragraph 4.7)
1.3 The presence of drugs and illegal weapons was a factor in the upsurge of criminal violence in the communities under reference since May, 2001. (paragraph 4.8)
1.4 The use of drugs was not an aspect of the upsurge of criminal violence during the same period. (paragraph 4.8)
1.5 The upsurge of violence is linked to external connections dealing in drugs and illicit weapons. (paragraphs 5.12, 5.13)
1.6 We were unable to find that the upsurge of violence during July 7-10, 2001 was linked to money laundering, extortion and other elements of organised crime. (paragraph 5.14)
1.7 We find that the conduct of the security forces up to and including July 5, 2001 was unexceptionable (paragraph 6.22); and up until that time we find that they carried out their law enforcement functions satisfactorily in all the circumstances. (paragraph 6.32)
1.8 The uncontradicted evidence of witnesses shows that:
* there was a large contingent of security forces — the official agents of the State — in West Kingston on July 7, 2001;
* the number of members of the security forces reflected the nature of the task to be done: that is, to execute cordons and searches for guns and ammunition in 19 areas in the Kingston Western Police Division;
* violence against the security forces perpetrated by groups of armed civilians provoked their response — ie return of gunfire, albeit with some restraint in order to protect lives;
* there was no evidence of indiscriminate use of violence — a characterisation of state terrorism;
* there was no credible evidence of violence directed through political motivation.
(paragraph 7.23)
1.9 We accept the evidence of Major Cummings as credible and find that Exhibit 36, the videotape made by the JDF from helicopter H29, is a true presentation of events that occurred on July 7, 2001 (paragraph 8.11).
1.10 The uncontradicted evidence respecting the attacks on the security forces on July, supports the following findings:
* the security forces came under heavy gunfire from armed civilians;
* both JCF and JDF suffered fatalities and casualties from gunshot wounds;
* the security forces spent inordinately long periods of time taking cover from gunfire that came from all directions, in buildings and behind buildings;
* the security forces were generally impeded in the execution of their planned operations;
* because of the continuous gunfire aimed in their direction, the security forces were prevented from removing the seriously injured and dead who had fallen on the streets.
(paragraph 8.23)
1.11 The essential cause of the violence in Denham Town, Tivoli Gardens and their environs during July 7-10, 2001, was the presence of drugs, the proliferation of guns and ammunition in the hands of civilians residing in the area, and the desire of the owners to protect them (paragraph (9.10).
1.12 We find that:
* no evidence exists that can attribute the loss of lives of 27 civilians in West Kingston during July 7-10, 2001 to the action of the security forces only;
* bodies found on the streets of Denham Town in areas where there was intensive gunfire between the security forces and armed civilians were, more likely than not, those of persons involved either in the assault on the security forces or caught in cross-ire between the opposing forces. The continuous gunfire delayed the removal of the bodies;
* results of ballistic tests do not demonstrate conclusively, that the bullets recovered from the bodies of the deceased persons were fired by any gun used by the security forces or any armed civilians;
* the bullets taken from the bodies of Corporal Mark Henry and Lance Corporal Kevin Lawrence did not come from any of the weapons that were submitted by the security forces for testing;
* five bodies were too decomposed to be the subject of forensic testing;
* it is probable that the bullet which injured a young girl alleged to have been lying on her bed in an apartment in Tivoli Gardens could have been fired from the Barrett 82 rifle used by a member of the JCF [Jamaica Constabulary Force].
(paragraph 10.18)
1.13 Deputy Superintendent Bertam Lee who led the Caribbean Search Team on July 7 adduced no evidence as to whether he complied with the administrative details mentioned in Section 50A – 50H of the Jamaica Constabulary Force Act. We have concluded that his failure to do so did not in the circumstances render the search inconsistent with section 19 of the Commission. (paragraph 11.5)
1.14 The detention and search of 15 men who had been hiding in a white van that Sergeant Wayne McKenzie intercepted near Tivoli Gardens were not inconsistent with sub-section 16(2) and section 19 of the Constitution. (paragraph 11.7)
1.15 We are unable to say that the security forces had violated the rights guaranteed by sub-section 16(1) of the Commission in respect of the two young men alleged by Reverend Al Miller to have been found lying on their stomachs in the sun on the hard pavement opposite to that on which members of the security forces were standing. (paragraph 11.11)
1.16 The right to life guaranteed to the gunmen by sub-section 13 of the Constitution was not violated because, in our view, the actions of the security forces were justified either under sub-sections 14(2)(a), 14(2)(c) or 14(2)(d) of the Constitution. (paragraph 11.13)
1.17 The attacks launched against the security forces; the damage and destruction of their vehicles, the firing on the JDF’s armoured cars engaged in extracting members of the security forces from danger zones and other vehicles conveying injured security personnel to the hospital — all suggest and express an extremely high level of hostility and rage against the security forces, which had been building up over time and which went far beyond a need to conceal and store illegal drugs, weapons and ammunition. (paragraph 12.26)
1.18 Action on the part of civilians in West Kingston on July 7, 2001 far exceeded in scope and intensity that which would have been required to divert the attention of the security forces from the Golden Age Home where guns etc were allegedly hidden. (paragraph 12.26)
1.19 There was substantial damage to private dwellings and business places which, given the location and proximity of the MPM Command Post, could have been caused by gunfire by the security forces. (paragraph 13.10)
1.20 The loss to the economy of Jamaica as a result of the upsurge of violence, in terms of monetary, material and other resources, is incalculable. (paragraph 13.10)
1.21 The alleged use of women by gunmen as human shields should attract serious strategic deliberations by the competent authorities, geared towards arriving at appropriate methods of dealing with any such recurrence in the future. (paragraphs 14.2 and 14.26)
1.22 During the period July 7-10, 2001, the security forces acted responsibly, exerting caution and restraint in order to contain the number of casualties and fatalities that might have occurred over the period, had they acted otherwise; and we find accordingly. (paragraph 14.36)
1.23 While the events of July 7, 2001 were inherently non-political in design, the road blockages, loss of lives and other forms of disruption which followed appeared to us to have been partisan in spirit; and we so find. (paragraph 15.14)
B Recommendations
1.24 Having regard to the fact that refusal to testify is punishable only on summary conviction by the resident magistrate, and then by the maximum fine of only J$500, or in default of payment, three months in prison, and having regard also to the serious nature of the conduct of the witnesse who refused to testify in answer to summons, it is our strong recommendation, first, that the Commission of Inquiry Act be modernised and brought into conformity with current notions of fairness and contemporary reality; and second, that section 11 of the Act provide for a penalty that would deter such conduct. (paragraph 2.67)
1.25 We also recommend that commissions be permitted to refer conduct of this nature to the Supreme Court of Judicature for first, a determination as to whether or not the conduct constitutes contempt; and second, assuming that conduct is found to be contemptuous, the imposition of the appropriate penalty. (paragraph 2.68)
1.26 A new accountability mechanism should be established at the national level in the form of a National Crime Commission with oversight responsibilities for the operational effectiveness of the JCF. (paragraph 17.25)
1.27 Existing mechanisms for disciplining police officers who abuse their discretionary powers and engage in unprofessional conduct generally, should be replaced by the Civilian Review Board with authority to hold hearings respecting breach of orders underlying abuse of discretionary powers, abusive conduct and unprofessional behaviour; all citizens in the society, regardless of their station in life, should have access to this Board. (paragraph 17.26)
1.28 Police officers as a class should be made subject to the Corruption (Prevention) Act 2000. (paragraph 17.30)
1.29 To facilitate the transition to full community-based policing, the appropriate authorities should give serious consideration to regionalising those police functions that lend themselves to community-based policing. (paragraph 17.37)
1.30 The Government should place sufficient resources at the disposal of National and Regional Commanders of the JCF to enable them to attain their goals and achieve their objectives. (paragraph 17.39)
1.31 Senior officers, ie officers of the rank of deputy superintendent and above, should receive intensive training in risk assessment and in the use of non-lethal weapons. (paragraph 17.43)
1.32 No police officer should be attached to any politician for a term of more than three years. (paragraph 17.50)
1.33 The Government, in collaboration with the private sector, should embark on a national development programme for inner-city communities, specifically aimed at housing, social amenities and business facilitation. (paragraph 18.10)
1.34 The Government should undertake a massive programme of education and training in order to sustain development in the inner-city areas, including education and instruction on good parenting. (paragraph 18.12)
1.35 As a matter of urgency, the Government should implement a structured job creation programme to be pursued within the inner-city communities of the corporate area with emphasis on West Kingston. (paragraph 18.13)
1.36 The Government should give serious consideration to the implementation of some or all of the projects recommended by Mr Dennis Morrison: The development of Port Royal, Port Henderson, Fort Augusta and Spanish Town, free-zone shopping, downtown shopping district, market re-organisation, sports and culture, information technology, garments and furniture, micro-business, fully cognizant to the external and internal financial constraints under which the Government is now obliged to operate. (paragraph 18.19)
1.37 Government should consider relocating all, or a substantial portion of, selected Government departments outside of Kingston to those parts of the rural areas where they could provide the greatest benefit to those who use the services. (paragraph 18.26)
1.38 Local Government Reform could be organised in such a manner as to encourage young people to remain in the rural areas. In this connection, special incentives could be given to entrepreneurs who are willing to invest in business and industries in these areas in order to foster rural development and the provision of jobs for rural youth. The strengthening of youth organisations like the 4-H clubs, would give the organisations the means to contribute effectively to skills training, leadership development and small cottage industries. (paragraph 18.27)
1.39 The Government should place greater emphasis on rural agricultural development and pursue a more structured land policy with specific emphasis on persuading young people to remain on the land. (paragraph 18.28)
1.40 A rural Development Commission should be established to provide an institutional basis for shared development. (paragraph 18.29)
1.41 The Government should initiate measures to reduce significantly and eventually erase all forms of political victimisation and patronage in the distribution of work, and scarce benefits. The existence of this phenomenon generates anger, distrust, interpersonal conflicts and resentment, and results in serious crimes and violence. Tribalism and garrison politics aggravate unrest. These features of national life should be eliminated as a matter of great urgency. We recognise that implementation of this recommendation requires a commitment and wise leadership of the political elites. (paragraph 18.31)
1.42 The present “dons”, whether reformed or not, should not be involved in this reform in any way whatsoever. (paragraph 18.32)
1.43 The Government should give serious consideration to instituting, within a reasonable time, a Restorative Justice Programme to empower the affected communities to take control of selected justice processes with a view to enhancing self-esteem of the people who reside in these communities. We recommend its application as a means designed to solve a number of serious problems in the affected communities. (paragraph 18.47)
1.44 We strongly recommend that the Government take urgent steps to implement those recommendations that they decide to accept. (paragraph 18.50)
1.45 In implementing these recommendations, government should consciously seek the support of members of the political opposition, leaders of other political parties, civil society and the church. (paragraph 18.52)