(1) Despite having "updated" its constitution (the so-called Charter of Rights) the Jamaican political ruling class chose to maintain the "savings clause" mechanism in its new update, which makes anachronistic and oppressive colonial laws still valid. (The deliberate retention of the link between colonial rulers and the new ruling class could not be more clearly expressed.) The death penalty, buggery, and abortion laws are examples of this link to colonialism. And so is the anti-obeah law which was specifically designed by colonial rulers to "eradicate the population's connection to Africa." The symbolism of retaining this law speaks volumes.
(2) Maintaining the death penalty is seen as a deterrent to the high murder rate even though it is almost impossible to enforce because of Privy Council rulings. No one has been hanged since 1988. [Ironically despite being upset with the Privy Council over its position on hanging the political ruling class cannot agree on replacing it with the Caribbean Court of Justice]. Police extrajudicial killings, one of the highest in the world, have become the de facto state weapon of terror over the population. This is supposedly the answer of the new ruling class to the high murder rate even though this method of terror has had no effect, pointing instead to a deeper social pathology. This state policy of police extrajudicial killings is the greatest moral and political indictment against Jamaica's so-called democratic system and its political ruling class.
(3) Abortion is still illegal because it is opposed by the church, but which doesn't agonize over the death penalty, or police extrajudicial killings. Unwanted children, placed in the care of the state, are in turn abused by the state. To date, the estates of children killed in the fire at the Armadale Juvenile Correctional Centre, or those damaged, have not been compensated by the state.
(4) The anti-buggery law is maintained because the church is opposed to its removal which is deemed to be offensive to God's laws. The politicians point out that homophobia is part of our culture and thus they are conveniently unable or unwilling to change it. The church, by the way, has not altered much its 19th century pact with the planters to preach to the slaves that they accept their lot as slaves and worry instead about saving their souls for the life hereafter. New political times but they maintain the same pact with the new ruling class.
One could argue that attaining a gradual and negotiated independence without the self-organized political involvement of the masses creates no urgency for the political ruling class to seriously address human rights abuses. In the meantime, they use a false party tribalism to divide and dampen the development of true political consciousness among the masses.
Over a protracted period of time state institutions have been created to address various civil and political rights issues (so-called reforms) but they have all fallen short of being able to remedy the ills they intended to cure.
Three salient examples:
(1) The Office of the Contractor General (OCG) was created to fight corruption but without having prosecutorial powers, corruption continues to be rampant. Jamaica is regarded as one of the most corrupt countries in the world. (2) The Office of the Public Defender was created to defend the population against state abuse but with inadequate resources, inadequate human rights laws, and without prosecutorial powers, human rights abuses by the state remain rampant. (3) The Independent Commission of Investigations (INDECOM) was created to investigate police killings but without prosecutorial powers, sufficient funding, and without a political willingness to address police killings as a policy of state (even by INDECOM itself), police killings continue unabated.
Most international bodies that scrutinize Jamaican human rights and justice issues have concluded that the Office and office holder(s) of the Director of Public Prosecutions (DPP) are inefficient and incompetent, and may be corrupt, among other things.
Added to the mix is that economy has hardly grown since independence; the gap between the rich and poor is among the highest in the world; official unemployment is at least 13%; and, according to a recent IMF estimate, 1.2 million of a population of approximately 2.7 million people live below the poverty line.
This is the context within which the government in 2010 created a state of emergency supposedly to apprehend gunmen who had been firing at the security forces over a two day period; to remove barricades into the Tivoli Gardens/west Kingston community; and to serve an extradition warrant on Christopher "Dudus" Coke who hailed from Tivoli.
The result, not surprisingly, was that 73 to 200 people were allegedly executed by the security forces; people's property was criminally destroyed; young men were either beaten or indiscriminately incarcerated for several weeks. During three days of assault by the security forces, bodies were left to rot in the streets. Christopher Coke was able to evade the dragnet (obviously with the help of the same security forces) and ended up in a government-owned house in St. Ann.
To date, though the Public Defender has submitted a damning but nonetheless tame and incomplete report (according to him) of what happened, he can go no further because his office does not have the power to prosecute. Most importantly, there was no investigation of the principals who had 'command responsibility' for the operations by the Public Defender. This is the greatest shortcoming of his report.
Significantly the police have not treated the massacre as a crime since they have done no investigation. Nor did the Public Defender raise any alarm about this knowing full well that his office was not set up to do criminal investigations of this sort. At this stage therefore no one can be prosecuted for the massacre.
Nor can the government's proposed Commission of Enquiry result in prosecution because the government, which as parliamentary Opposition in 2010, supported the massacre, is not legally obliged to accept any recommendation arising from the enquiry. It is not difficult to see that they merely wish to go through the motions of an inconvenient enquiry. The government through its minister of national security has supported the ongoing massacre of inner city youths by the police (over 218 youths have been killed by the police so far in 2013); they are committed to protecting an incompetent and compromised police commissioner; they have elevated the former head of the Jamaica Defence Force (JDF), who is one of the prime suspects in the 2010 massacre, to the post of permanent secretary in the Ministry of National Security. All of this speaks volumes about the government's unspoken intentions.
Unless the government agrees to give the International Criminal Court jurisdiction over the investigation, the 2010 Tivoli Gardens massacre is likely to become a matter of history in the not too distant future -- much like the 1865 Morant Bay massacre and the 1978 Green Bay massacre.
This doesn't have to be the outcome. Civil society must demand of the government that the Commissioners (still unnamed) be given the option to recommend referral to the ICC and the government must commit beforehand to accepting that recommendation. It is time to confront this criminal policy of extrajudicial state executions.
The Tivoli Gardens Massacre
Licence to kill: Tribute to Kayann Lamont
Bruce Golding: Blood is on your shoulder