Obeah and the Attorney-General

 

 

CORRECTION

It has come to my attention that I was wrong in law in an earlier version of the essay below to state that the A-G has the power to direct the Commissioner of Police to withdraw the charge against the Minister.

I was unaware of the 16 April 2014 advice of the Privy Council in the case of the Commissioner of Police v Steadroy Benjamin [2014] UKPC 8.  In that case the PC asked the question, “Does the Director of Public Prosecutions have a general power to prevent the police from instituting criminal proceedings?”  They held that the DPP has no power to instruct the police who to prosecute, nor who not to prosecute.  There is nothing in any Act nor in the Constitution giving this power to the DPP.  The Constitution gives him the power once a complaint has been filed in the court, to take over the case and then to discontinue it, as was done by the Anguilla A-G in the Minister’s case.  The procedure followed by the A-G in the Minister’s case was therefore unimpeachable.

I was in error when I stated in the earlier, erroneous version of this essay that “As legal adviser to the police and lead prosecutor in Anguilla, the A-G already has control of all police prosecutions.  The normal way for an A-G to discontinue a police case is for him to instruct the Commissioner of Police to withdraw the charges.”  As the PC was at pains to explain, the A-G can advise the police to withdraw a case, but he cannot instruct them to do so.  Normally, the police would be expected to act in accordance with the advice of the A-G, but they are not obliged to do so. 

The A-G of Anguilla was therefore quite correct in law when he took over the police prosecution and formally discontinued it in the case I reference below.

I apologise to all persons whom I accidentally misled.  My research should have been more thorough.

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The connection between Obeah and the Attorney-General (A-G) of Anguilla is a long and tortuous one.  It is an epic story of misbehaviour and character flaws among Ministers of Government in Anguilla, and the intervention of the justice system.  I shall tell you the story.  I’ll try to keep it short.

If I thought there was the slightest chance of either Magistrate’s Court or High Court criminal, appeal, judicial review, or civil proceedings continuing in court in this matter, I would hold my peace.  It is unseemly for an ex-judge to express publicly an opinion on any proceedings that are or might come before any court.  But, since I am convinced that there is little chance of any further proceedings being brought in this matter, I feel free to express my personal views.

The now notorious events of 23 May 2023, when a Minister of Government struck a citizen with a chair, all the while uttering the foulest and most indecent threatening language that can be imagined, resulted in the police carrying out a criminal investigation.  Besides the evidence of the witnesses, mainly the Minister’s colleagues, there are two videos.  The entire event was caught silently by a surveillance camera. There was also video film captured from the mobile device of a Minister containing the language of the impugned Minister.  Commencing on the day of the incident, the latter video was widely circulated throughout Anguilla and the region.  I venture to say that no adult in Anguilla with a smart phone has not seen the video.  We have all seen and heard substantially all the video evidence there is.

Subsequently, after an unexplained delay of some three months, the police finally laid charges against both the Minister and the victim.  The victim was hurriedly arrested at his home on the day of the incident for an alleged breach of the peace and released from custody the same day.  By contrast, the Minister was never arrested or questioned, so far as we know.  It would be fair to say that the delay was unusual given the nature of the offences and the available evidence.  Even the specifics of the now discontinued charges against both parties have never been publicly disclosed.

The constitutional power of the A-G to take over and discontinue any prosecution is undoubted.  It is an ancient power inherited from the British Government that has found its way in all our Commonwealth Caribbean Constitutions.  It is generally exercised “in the public interest” where the A-G judges that the evidence is insufficient to secure a conviction and where he believes continued prosecution would be an abuse of the legal process and a waste of the Magistrate’s time.

The Minister engaged in behaviour caught on film that in the case of any private citizen would have resulted in likely more serious charges immediately being brought and vigorously prosecuted.  Even if she and her friends claim that she was acting in self-defence, the video tape evidence is clear.  Whatever happened before the filming began, the evidence on the tape shows that her conduct was at best retaliatory, at worst an unprovoked assault.

Members of the public are understandably upset at the Minister appearing to get off scot-free from filmed conduct that in any other case would have resulted in immediate criminal proceedings.  The airwaves from Klass FM 92.9 are filled almost daily with commentators condemning the police force, the Premier, his Government, the A-G, and the Governor, for sweeping under the carpet allegedly criminal conduct by a Minister.

Other commentators are now calling on the victim to bring an application before the High Court asking for judicial review of the A-G’s decision.  The problem is that that remedy is an exceptional one; it is only available in very limited circumstances.

We all remember when a few years ago in another island a police officer accused the Prime Minister whose house she was guarding of having sexually assaulted her.  The victim brought her own criminal complaint in the Magistrate’s Court.  The Director of Public Prosecutions, who in that country performs the duties that in Anguilla are performed by the A-G, immediately “took over” and discontinued the case.  That was a private criminal prosecution.  The police could not discontinue it, as they had no control over it.  The victim subsequently applied to the High Court for judicial review of the DPP’s action.  The High Court dismissed the application.  The police officer then appealed to the Court of Appeal.  That Court of Appeal held that the judge was right.

The decision of the A-G to take over and discontinue a private criminal prosecution is not normally subject to judicial review.  Save, for example, in a case of bad faith, such as where a bribe was paid, or where there is proof that the A-G acted under the influence of any other person, the decision of the A-G is not reviewable by a court in Anguilla.

In this Anguillian case, the only realistic recourse the victim now has is to file a civil claim in either the Magistrate’s Court or the High Court for damages for civil assault.  He is unlikely to do either.  If he files the case in the Magistrate’s Court, a small claims court, the damages he can be awarded for the injury he received would be minimal.  He would probably feel publicly humiliated by what he would view as a contemptuous judgment in his favour.  The High Court would not serve him any better.  The High Court deals with damages cases where the amount claimed is more than EC$20,000.00, the amount in the Magistrate’s Court.

The only alternative to court action available to the victim is political action.  Those in opposition to the Government have taken up his cause as a free, government-supplied, opportunity to flog the present Administration.  The Government’s main remedy is to ignore the chatter and hope the problem will go away, as these things usually do.  Occasionally, when confronted by a journalist at a press conference for failing to act, the Premier gives unconvincing excuses and explanations, such as waiting for the police investigation to be completed.  This whole epic is Anguillian popular theatre at its best.  We all love it so and encourage it for our entertainment.

Friends of the citizen in question have now launched an on-line petition calling on the A-G to go back on his decision, and to reinstitute the original criminal proceedings.  Can anyone seriously contemplate the A-G of any country going back on a decision of this nature and pleading, “I beg your pardon.  I made a mistake.  It was wrong of me to discontinue the case.  I am going to revive it as you request.”  Merely to set out what the petition asks the A-G to do reveals how preposterous and unlikely it is.  Yet even though I know it is futile, I have signed the petition.  This is to demonstrate my general dissatisfaction at how the authorities have mishandled the conduct of the Minister.

I have heard it hinted on the public media that the A-G acted improperly in this matter.  The suggestion is that either the Governor or the Premier leaned on him to persuade him to save the government by discontinuing the case against the Minister.  The suggestion is that he gave in to the pressure.  In my view, it is pure mischief to suggest such a thing.  Anyone with any knowledge of the character of the A-G in question knows that this is rubbish.  The constitutional power to take over and discontinue any court proceedings is an ancient constitutional device.  The British invented it years ago as an instrument for the protection of those at the top of the UK’s political life.  We have merely automatically inherited this power.  It is found in all our Constitutions.

The latest development in the saga of the cursing, chair-swinging Minister is a voice note from her father.  It has been in wide circulation in Anguilla in the past week.  It appears to be addressed to the proprietor of Klass FM, the most popular privately owned radio station in Anguilla.  The proprietor of this station regularly hosts citizens who are concerned about an issue.  He permits them to air their views and to solicit public support.  This radio station is virtually the only medium through which Anguillians can call for public support for whatever their project is.  In recent weeks the epic story of the Minister has consumed airtime daily.

The voice note in question from the Minister’s father is in the form and style of a Biblical curse.  Although I have long ago emancipated my mind from religious slavery, I found the contents of this voice note an epic of impropriety.  It is particularly disturbing coming from a well-known Anguillian Christian preacher and one-time pastor.  He knows his Old Testament, and revels in its Bronze Age violence and brutality.  These were his words, apparently addressed to the radio station proprietor and some of his recent guests:

In as much as you have taken the light in troubling the country with evil, and saying hurtful and dangerous things endangering the lives of private and public officers, this day I have found it compelling to invoke the judgment of God on you, two women, and four men, with whom you have conspired to do this evil.  May the judgment of God be upon you and your generations for evermore.

The pastor’s tone of voice throughout his invocation of the judgment of God was solemn and sonorous, redolent of a twisted religiosity.  Does anyone know of a single incident where either Christ or one of his disciples invoked a curse upon any opponent?  Does the New Testament recognise the right of a Minister of Religion to curse anyone “unto his generations for evermore”?  Is this even Christian?  It could not be.  In truth, this “Christian pastor” calling down a curse as he did echoed more like the incantations of an Obeah man or a Voodoo priest who is paid to put evil curses on his client’s enemies.  What next from a Christian pastor!

 

Tolerance for Diversity

Do we know what “tolerance” is?

The verb “to tolerate” has a number of meanings.  It means for me to permit practices or beliefs other than my own.  The practice of tolerating other religious beliefs than our own is a principle of our system of government.

We find it in our most important legal document.  It is called the Constitution of Anguilla.  It was made by our government and adopted by the people of Anguilla in the year 1982.  One of the most important parts of our Constitution is the part that sets out our fundamental rights and freedoms.

Section 13 of our Constitution basically says that no law can be made which discriminates against any of us in relation to our race, our place of origin, our political opinions, colour, creed, or sex.  That means that none of us can be mistreated by any official of the government of Anguilla because we are different in some way.

Do you know someone who belongs to the Muslim faith?  Do you know any Buddhists, or Hindus, or Jews?  Those are four of the great religions other than Christianity.  Some parts of the world believe in Jesus.  Other parts of the world believe in Jehovah, Buddha, Brahma/Shiva/Vishnu and the other Hindu gods, and Allah, blessed be his name.  But, there are also many other religious faiths.  There are Rastafarians, Bahais, Sikhs, Confucianists, Shintoists, and Obeahists.  Our Constitution teaches us to be tolerant of all of them.  Let people believe what they want to believe.  Do not hurt someone just because he was brought up in a different church to yours.

If we feel an instinctive dread or fear of persons of a different colour, or a different religion, or a different culture, it does not mean that there is something wrong with that different person.  It means that there is something wrong with us.  Perhaps, we have an inferiority complex.  We may be damaged in some way that does not permit us to practice or favour tolerance.  Intolerance is the opposite of tolerance.  It means being so sure that you are the only one in the right that you must hurt, or injure, or insult persons who are different.

Do you know someone who has to keep in a wheelchair, because they cannot stand up?  What happens when we see that person?  Do we go up to him or her and ask how he or she is today?  Or, do we turn our faces away because we cannot bear to see someone who is so different from us?  The principle of tolerance tells us that we should go up to that person and welcome him or her.  We should make every effort to let that person who is living under such a big challenge know that we appreciate and respect him for who he is.  That is showing tolerance.

Diversity is the reason we need to show tolerance.  Diversity means having lots of differences, when some of us are not like others of us.  Diversity describes the nature of our world.  Our world is a diverse world.  There are different nationalities, different climates, different religions, different sizes and shapes of people.  There are different ways of dressing, and different ways of behaving.

In Anguilla, in religion, there is not much diversity, since most of us go to a Baptist Church, or a Methodist or an Anglican Church.  They are all pretty much the same, so we feel comfortable with each other.  But, many years ago, these faiths were at war with each other.

Three short centuries ago, people were burned at the stake, or hanged by the neck until they were dead for belonging to a different Christian denomination than the majority.  A lot of people were persecuted, and had to flee from their homes to save themselves.  It still happens today in war-torn parts of the world.

But, most people today welcome diversity.  When we have so many people of different colours, and languages, and religions, we have diversity that adds interest and flavour to our lives.  Would life not be boring if we were all the same?  Who wants to eat corn for every meal, of every day, of every week, of every month, of every year?  We need diversity in our diet to enjoy a healthy nutrition and a healthy life.  So, we also need to welcome diversity in culture, and in races, and in religions.

If you meet someone who is afraid of foreigners, or who hates people who are different, you will know that you are meeting someone who is immature and ignorant.  A person who is insecure in his own culture and faith is disturbed at coming into contact with other cultures and faiths.  Someone who wants other people to be just like him is intolerant and afraid of diversity.  A well-balanced person, someone who has a good character and self-confidence in his or her own worth, finds other cultures and faiths interesting and exciting.

Just because you are orange does not mean that you must not like those who are yellow, pink, purple or maroon.

I want us all to be tolerant for diversity.

A speech given by invitation to Orange House at Campus B of the Albena Lake-Hodge Comprehensive School on Friday 12 March 2010.