OBSTACLES IN THE FUNCTIONING OF THE T.R.C.
Amnesty and Exemption from Prosecution of Witnesses
An important matter affecting the effective functioning of the Commission, so far as eliciting the truth by taking evidence from witnesses was concerned, was the awareness of witnesses and potential witnesses that their testimony was or would not immunize them from criminal prosecution if they said anything that showed, on the face of it, that they had committed a criminal offence, or that it was likely to incriminate them.
This apprehension was more real than speculative having regard to the knowledge that in the holding of its inquiry, the Commission was required, under its mandate and terms of reference, to conduct the proceedings in public and that there was no inherent power or other authority under the Commissions of Inquiry Act or any other statute or otherwise which enabled the Commission to exempt witnesses from the contingency of criminal prosecution, or to give them any assurance that they would not be prosecuted if they spoke of matters which attracted the likelihood of such prosecution; and having regard, also, to there being no provision in the laws of Grenada for a time limitation against prosecution for indictable offences.
It is true that witnesses who came or intended to come before the Commission to give evidence about acts they had committed for which they had previously been charged and convicted or acquitted, would have been protected by appropriate application of the doctrines of autrefois convict and autrefois acquit. But others could not lay claim to such protection.
It is the belief and understanding of the Commission that there are persons who might have made themselves available to appear before it and testify if they could have been given assurance of protection against prosecution; and that there were persons who appeared before the Commission and did give evidence, but were inhibited from speaking 'the truth, the whole truth and nothing but the truth' for fear of playing into the hands of the prosecuting authorities.
The Commission is of the opinion that similar considerations to the foregoing would apply to persons who chose to submit memoranda or other written communication in evidence to the Commission.
In this context, it is of relevant regard to point out that as soon as the Commission became aware of the likely prevalence of this particular impediment getting into the way of its search for the truth, the Commission advised itself as to the meaning of "indemnity" and also requested clarification of paragraph two (2) of its Terms of Reference which stated
To recommend indemnity to various persons who give what is considered to be truthful evidence at the enquiry.
At a public outreach session on December 13, 2001 at Norton's Hall, Cathedral House, St. George's, several members of the public audience expressed queries and concern about this lack of legal protection in the form of what they referred to as "amnesty" for persons who gave or wanted to give evidence before the Commission. As one participant put it -
People must be assured that if they give the truth, they would not be held liable.
In the end, the Commission was satisfied to accept that it did not have any power to grant amnesty, but if at all, could include in its recommendations in its Report at the completion of the enquiry that a particular witness or witnesses should be favourably considered for the grant of amnesty or exemption from prosecution. Indeed, the Government Minister of Labour who was assigned to be facilitator for the Commission opined at the same public session at Norton Hall, that indemnity in the context of paragraph 2 of the Commission's Terms of Reference
really means security against exemption from legal responsibility for one's action, that may have been committed and testified about.
This is one specific way in which the Commission can legally personalize its responsibility for action. The Terms of Reference also says to make recommendations as the Commission sees fit in all the circumstances; and the reason why it was put in that form for the Commission to make recommendations, is that the Commission cannot grant indemnity or amnesty, whatever you may call it, because according to the Constitution, it's only the Director of Public Prosecutions that can really grant amnesty and indemnity, so after the Commission has heard evidence from various persons, if in truth and in fact they have been truthful, the Commission can make recommendations.
Under section 71 of the Constitution of Grenada (1983) the Director of Public Prosecutions has discretionary powers to institute and undertake criminal proceedings in any case in which he considers it desirable to do so, against any person before any court in respect of any offence alleged to have been committed by that person; to take over and continue any such criminal proceedings that have been instituted or undertaken by any other person or authority and to discontinue at any stage before judgment is delivered any criminal proceedings instituted or undertaken, by himself or any other person or authority.
It was therefore, in the opinion of the Commission, within the permitted powers of the Director of Public Prosecutions if he were properly advised, to give at least an undertaking not to prosecute in particular instances of witnesses who requested such protection, if he considered it desirable not to do so.
It does not seem desirable to extend the protection beyond the ambit of this discretionary undertaking into the granting of general amnesty; since to do so may send the wrong signal to all perpetrators of criminal atrocities during the period under inquiry (1976 to 1991) that they could cheat, with undeserving impunity, those institutional requisites of the criminal law system which are necessary for the preservation of law and order and the protection of human rights in a truly democratic society.
Such a grant of general amnesty could also provoke the sensitivities of relatives of victims and other persons affected by the criminal and human rights violations of the perpetrators.
While not strictly a legal requirement, since the Grenada legal system does not provide for it, it might very well have been thought prudent also, while consideration was being given to a limited form of amnesty in terms above mentioned, to arrange for witness protection to be given to persons who asked for it, or whom the Commission was advised might reasonably require it. This could very well have encouraged persons who came to testify before the Commission to be more willing to speak the truth on some matters, and also make others who did not come forward, feel more secure if they did want to do so.
Legal Counsel to the Commission
Section 19 of the Commission of Inquiry Act Chapter 58 provides that
A barrister or solicitor whether appointed by the Attorney-General to assist the Commissioners or authorised by them to attend at an inquiry to represent a person, and any other person authorised by them to appear before them, may, so far as the Commissioners think proper, question a witness concerning matters relevant to the inquiry; while section 10 of the Act empowers the Commissioners to summon witnesses, call for the production of documents and to examine witnesses and parties concerned on oath;---"
During the course of its inquiry, the Commission did consider it important to summon certain witnesses to testify before it and to be examined by counsel and particularly in course of its sittings during April 22 to 26, 2002 and thereafter.
Accordingly, the Commission communicated through its secretary, request to the Honourable Attorney General for arrangements to be made for the appointment of legal counsel. But the Honourable Attorney General declined to deal with the request on the ground that it being a matter with budgetary implications it, should be directed to the Government Minister who was given charge of the Commission.
The previous and ensuing position was, therefore, that from beginning to end the Commission did not have the benefit arid assistance of legal counsel and could not effectively or at all exercise its coercive powers regarding the subpoena of witnesses and production of documents which it considered important requisites for helping its inquiry; albeit there being within the membership of the Commission, as constituted, a notable measure of legal learning and forensic competence.
Legal counsel to the Commission would have served as a useful adjunct to the Commission and an active catalyst for facilitating the process of the inquiry and the work of the Commissioners.
The Commission is therefore pleased to recommend that careful attention be given to the above matters as prerequisite arrangements to be made in respect of providing for them, in any future establishment of similar Commissions of Inquiry.