Report of the Disciplined Forces Commission (Unofficial Copy)

[Unofficial Copy]

REPORT

of the

Disciplined Forces Commission

May 2004

[Unofficial Copy]

1

Introduction

Commission

1. Pursuant to powers under article 197 A(5) of the

Constitution, the National Assembly, on the 16th May

2003, passed Resolution No.21 of 2003 for the

constitution and appointment of a Disciplined Forces

Commission. In accordance with the terms of that

Resolution, the President appointed persons nominated

by himself and the Leader of the Opposition as

members of the Disciplined Forces Commission (The

Commission).

2. Mr. Ian Neville Chang SC, Justice of Appeal, was

appointed Chairman; and Mr. Charles Rishiram Ramson

SC, Mr. Mohabir Anil Nandlall, Brigadier (ret) David

Arthur Granger MSS, and Ms. Maggie Beirne were

appointed members. The Chairman and members were

sworn in on the 30th June, 2003 save Ms. Maggie Beirne

who was sworn in on the 16th July, 2003.

3. On the 1st December, 2003, Ms. Beirne resigned from

the Commission after the submission of the Interim

Report on the Guyana Police Force to the National

Assembly. On the 14th January, 2004, Professor Harold

Alexander Lutchman was appointed and sworn in as a

member in her place. Thereafter, the membership of the

Commission remained unchanged.

4. The Commission was ably supported by a four –

member team comprising Ms. Bertlyn G. Reynolds,

Legal Counsel; Mr. Gino Peter Persaud, Secretary; and

Mr. Trevor King, Registrar. Apart from the youthful office

assistant, Mr. Jerome Bobb, it had no clerical and

support personnel.

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Mandate

5. The Commission had a broad mandate “to examine any

matter relating to the Public Welfare, Public Safety,

Public Order, Defence or Security including the

Structure and Composition of the Disciplined Forces,

and make recommendations generally with a view to

promoting their greater efficiency, and giving effect to

the need in the public interest that the composition of

the Disciplined Forces take account of the ethnic

constituents of the population.”

6. In accordance with its Terms of Reference, the

Commission was required to submit to the National

Assembly an Interim Report on the Guyana Police Force

within 3 months of the commencement of the inquiry

and a Final Report on all the Disciplined Forces within 6

months. Due to circumstances beyond the

Commission’s control, however, these deadlines could

not be met and approval was sought from, and granted

by, the National Assembly for the respective reports to

be presented on the 1st December, 2003 and 4th May,

2004. The Interim Report submitted on the Guyana

Police Force is now superseded by this Final Report.

Rules of Procedure

7. It was agreed among the members of the Commission

that the rules which appear at Appendix C would be

followed in conducting the inquiry. In brief, the rules

prescribed that,

a) Public advertisement would be made throughout

the country for individuals, institutions and groups

to submit statements and documents to Counsel

for the Commission who would advise the

Commission on what was considered relevant.

b) Witnesses would be summoned to be examined

by Counsel for the Commission and by members

of the Commission.

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c) The Disciplined Forces were to be afforded the

opportunity of being represented by Counsel of

their choice throughout the inquiry. Cross-

examination of witnesses would not be as of right

but within the discretion of the Commission.

d) Visits would be paid by the Commission to

selected locations of the four Disciplined Forces to

enable the Commission to examine the

environment and conditions in which the Forces

were required to function. In this context the

Commission condemns the unexplained refusal of

the GDF to permit its visit though unannounced at

its Lethem location.

Forces

8. The Commission was required to inquire into the

Guyana Police Force (GPF), the Guyana Defence

Force(GDF), the Guyana Prison Service (GPS) and the

Guyana Fire Service (GFS) and all their branches,

departments and units, focusing on identifying their

shortcomings and making recommendations for

remedial measures, sustained professional

development and structural reform (where

necessary).

9. The Commission was acutely aware that the

Disciplined Forces constitute a large percentage of

the State’s employees and attract a significant

portion of budgetary allocations. The implementation

of some of its recommendations, therefore, is likely

to be prioritised in terms of relatively scarce

budgetary resources and competitive claims thereto.

10. However, the Commission was also conscious of the

fact that the Forces play a vital role in ensuring the

well-being of the State and ensuring and maintaining

political stability in a democratic constitutional

framework and in promoting social safety and

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security which cannot be measured with an

economic yardstick.

Analysis

11. The Disciplined Forces are all of statutory creation

and their functions, duties and responsibilities are

necessarily governed by public law. Any analysis of

the composition, function and operations of the

Disciplined Forces could hardly be done without

looking through a public law lens and the applicability

of public law considerably informed the Commission’s

methodology and deliberations.

12. The Commission was also cognisant of the absence of

substantial revision of the relevant Acts and

Regulations over the past thirty years. While the

Commission would have been happy to be able to

confine its analysis to the existing legislative

framework which applies to the Forces without

seeking to influence future parliamentary action, such

a limited approach to its task did not commend itself

to it.

13. The advent of transnational dangers to national

security and public safety posed by narco-trafficking,

weapons-smuggling, money laundering, illegal

migration and terrorism, compelled examination

whether the existing statutory framework needed

changes to enable the Forces to meet the challenges

posed by such baneful phenomena. The Commission,

nevertheless, in deference to the competence of

Parliament to debate and discuss issues of legislative

changes, attempted as far as possible to limit its

recommendation on legislative changes to the

necessary minimum.

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Executive Summary

General Overview

In accordance with its Terms of Reference, the Disciplined

Forces Commission considered a limited range of issues

pertaining to the Guyana Police Force (GPF); Guyana Defence

Force (GDF); Guyana Fire Service (GFS); and Guyana Prison

Service (GPS). The methodology employed by the Commission

involved: the examination of 163 written memoranda from the

public; oral examination of 97 witnesses, and visits to 8 selected

installations of the four Forces. Lists of witnesses examined and

installations visited are at Appendices E and F, respectively.

The Commission was satisfied that, in general, the various

Forces sought to meet their testimonial obligations and received

adequate responses from interested individuals and

organisations. The Commission did not, however, have the

benefit of comprehensive presentations of the strategic plans for

the respective Forces.

The Commission was of the view that some of the matters

which were brought to its attention could have been

satisfactorily dealt with by the Ministries responsible for the

respective Forces/Services. It is an urgent necessity, therefore,

for these Ministries to draft ‘strategic plans’ for all four Forces,

possibly within the current calendar year. Such plans could form

the bases for the rational development; the guidance of the

heads (i.e., Chief of Staff, Commissioner, Director and Chief Fire

Officer, respectively); the establishment of mechanisms to

identify problems and to rectify faults; and the information of the

general public.

Statutory Framework

In spite of the existence of certain “Joint Service”

mechanisms, the Commission wishes to emphasise that each

Force is independent of the other and functions in a unique

manner. The Commission therefore paid very close attention to

the statutory framework defined by the Defence Act, Police Act,

Firearms Act, Coroners Act, Fire Service Act and Prison Act.

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As far as possible, the Commission refrained from

recommending statutory changes but there are deserving cases

for introducing, modifying and modernising regulations in

accordance with changes within the environment and in the

Forces over recent decades. It should be a normal requirement,

say on a decennial basis, to revise regulations for the better

management of the forces.

Work Programme

The Commission started its work in August 2003 and ended

in April 2004. In the course of its work, Ms. Maggie Beirne

resigned on the 1st December, 2003 and Professor Harold A.

Lutchman was appointed to the Commission on the 14th January,

2004.

Despite its commitment to complete the Inquiry as

contemplated by its instrument the Commission was obliged to

seek minimal extensions of the deadlines for the submission of

the Interim Report and the Final Report to the National Assembly

owing to the unusually large number of witnesses and visits to

several locations, infrastructural dislocations and inadequate

support staff, among others.

Hearings were principally held at the Law Library, Supreme

Court compound, Georgetown.

Recommendations

The Commission makes the following recommendations:

Guyana Police Force

Functions and Operations:

(1) A preventative policing policy should be revived and

effectuated.

(2) The investigative capabilities of the GPF should be

strengthened.

(3) Non-entry, in addition to non-exit, of illicit drugs should

be made a focus of preventative policing.

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(4) A sound national criminal intelligence system should be

established and maintained.

(5) GPF members should be encouraged to identify potential

informants and gain their trust.

(6) Ill-considered transfers of Force members, so as not to

disrupt well-established information networks, should be

avoided.

(7) The name and place within the Force structure of that

special squad known as the ‘Black Clothes’ squad should

be clarified for public information.

(8) Strict control; careful selection; training; re-training;

discipline; special rotation of membership and the

requirement that those who are not working on under-

cover duties wear clearly identifiable uniform, should be

enforced for members of special squads.

(9) The means to conduct DNA testing should be acquired.

(10) The recruitment of scientific experts from society at large

to serve the GPF scientific laboratory, and who would not

be inhibited by the requirement to carry GPF rank, should

be pursued.

(11) More personnel should be trained in handwriting,

fingerprinting, ballistics and related fields and they

should be deployed in the divisions so as to reduce the

need for all such investigations to come to CID HQ.

(12) The control and command structure of the GPF, as it

pertains to file transmission, should be relaxed so as to

obviate the need for extensive minutes and to expedite

receipt of legal advice from the DPP.

(13) The means for greater use of legal expertise within the

GPF should be established and the secondment of Force

members, who are Attorneys to the DPP’s Chambers, for

about two years to acquire professional experience

should be considered.

(14) A consistent level of ‘service and protection’ to the public

on a 24 hours basis should be provided. If necessary, the

shift system, especially at rural and hinterland stations,

should be restructured appropriately.

(15) Civilians should be contracted to perform functions that

do not require police training as follows:

(a) Examination of vehicles for road fitness

certificates

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(b) Processing of passport applications

(c) Typing and secretarial work

The serving of summonses and similar or related duties in rural

areas should be done by Rural Constables.

(16) The use of common excuses (such as “there’s no

transportation”) to cover-up neglect of duty should be

eliminated.

(17) GPF members should be trained to remain unmoved and

dispassionate especially in the face of provocation.

Structure:

(18) Some elements of the training and disciplinary activity

that may be perceived as ‘military’ should be

maintained.

(19) More sub-divisions and police stations should be

established and police presence increased, especially in

new housing areas such as Sophia and high-crime-risk

areas such as Lethem, after careful analysis of the risk of

criminal activity.

(20) Divisional commanders should be empowered to act for,

and on behalf of, the Commissioner in their Divisions.

(21) The numerical strength of the GPF should be augmented.

(22) Rural Constables should be paid and they should be

issued precepts, as provided by statute.

(23) The burden of training private security personnel should

be removed from the GPF.

(24) Members of the Special Constabulary should be relieved

of guard duties and be allowed to function as true GPF

reserves.

(25) Part XIV of the Police Act should be repealed.

Recruitment and Training:

(26) Career attractiveness should be enhanced by e.g., review

of salary structure and substantial increases in

remuneration.

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(27) The probationary period should be used to dispense with

personnel with undesirable character traits before they

become entrenched in the Force.

(28) Urgent consideration should be given to the examination

of the three cadet schemes to determine whether any

changes are necessary, and what should be done to

place the selection and training of cadets on a regular

basis. A revitalised cadet scheme could be canvassed

among successful secondary school and university

graduates.

(29) Efforts should be made to remove the misperception that

the GPF is the preserve of any one ethnic group and to

promote instead the concept of a unitary national Force.

(30) Recruits should be offered a confidential avenue to air

their grievances.

(31) The minimum educational criterion for recruitment

should be raised from a sound primary education to at

least a sound secondary education.

(32) All GPF members should be made aware of the limits of

their statutory powers.

(33) GPF members should be trained to appreciate the value

of being community-friendly, so as not to alienate the

public.

(34) GPF members should also be trained in courtesy and

politeness.

(35) Investigators should be trained to fully and

comprehensively investigate criminal allegations.

(36) Proper instruction classes about constitutional

safeguards relevant to police functions such as powers of

arrest and granting of bail should be conducted.

(37) A Police Academy should be established (with at least

one intake of cadets every year) due to the need to

produce well-educated officers who are skilled in police

duties.

Ethnic Balance:

(38) It should be an aim to achieve a Force representative of

the ethnic diversity of the nation without employing a

quota system, which would be constitutionally offensive.

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(39) A forensic audit should be carried out of current trends of

recruitment and the results and subsequent reviews

should be placed in the public domain.

(40) Ethnically diverse recruitment and promotion panels

should be employed as openly and extensively as

possible.

(41) A policy, distinct from that for recruitment, should be

employed to provide inducements, such as better

conditions of work, for all ethnic groups to remain in the

GPF.

(42) Inter-racial teamwork should be fostered to engender

inter-racial cohesiveness.

(43) The rules and practices of the GPF should be adapted to

cater for the needs of an ethnically-diverse workforce,

especially as regards religious beliefs, meals and racial

equality.

(44) The membership of the GPF should be augmented,

especially as regards Indo-Guyanese, without introducing

conscription.

(45) Effective disciplinary measures must be introduced to

counter any racial or sexual harassment. Additionally, a

commitment should be secured from senior ranks for a

change of attitude in dealing with lower ranks.

Community Policing:

(46) The membership of these groups and other interested

members of the communities should be carefully

screened for induction into the Rural Constabulary and a

proper system of training and instruction relevant to

community policing and other rural constabulary duties

should be implemented for those selected and

appointed. Those who are not fit to be inducted into the

Rural Constabulary should be encouraged to act merely

as the èyes and ears’ and not the `coercive arm’ of their

communities.

(47) There is need to legitimise the practice of community

policing within some legislative framework, so as to

ensure that community-policing functions are

institutionalised, strictly supervised and monitored.

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(48) The criteria for the grant of firearm licences should not

hinge on membership of a community policing group.

(49) The Officers-in-Charge of police stations should maintain

records of licensed firearm holders and their firearms,

whenever they allow them to be used on community-

policing duty.

Extra-Judicial Killings:

(50) During training, emphasis must be placed on the fact

that the use of minimum necessary force is always to be

preferred, even in confrontations with armed and

dangerous criminals.

(51) Appropriate instruction and training should be given to

policemen about the circumstances under which they

may resort to the use of the firearm.

(52) Permission to carry firearms should be restricted to GPF

members who clearly demonstrate a high degree of

responsibility. On occasion, where it is necessary to

equip junior ranks with firearms for frontline duties and

the responsibility element is doubtful in such ranks, they

should be under the control of a mature, responsible and

experienced supervising rank.

(53) In anticipation of the abolition of the felony-murder rule,

immediate steps should be taken to re-orient the attitude

of the GPF regarding the use of deadly force.

Accountability to Civilian Authorities:

(54) On account of the DPP’s constitutional powers, the GPF

should be mindful of its conventional obligation to give

effect to advice from the DPP; only in rare cases should a

different course be taken.

(55) Parliament should establish a Commission on Public

Safety to which the Minister of Home Affairs would be

answerable.

(56) Matters of priority for such a Commission could include

the police annual report and the collection and

dissemination of crime statistics.

Complaints against Police:

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(57) Training and instruction should be provided for GPF

members to create awareness of their responsibilities

under the Police Complaints Authority Act.

(58) The Police Complaints Authority (PCA) should be

provided with an investigative team consisting of trained

police investigators who are directly responsible and

accountable to the Authority.

(59) All investigators functioning in such a capacity should be

seconded and transferred to the PCA for the purpose of

transparency.

(60) Staffing of the PCA should be completed in accordance

with its legislation utilising retired police officers and

others with requisite skills and competence.

(61) The independence of the PCA should be maintained by

providing more administrative and financial resources.

Firearm Licences:

(62) Regulatory amendments to the Firearms Act should be

introduced in order to bolster supervisory control over

divisional commanders who grant firearm licences, in

keeping with the general objective of GPF Standing Order

91/64.

(63) The Commissioner of Police should continue to have

strict supervision and control over divisional

commanders with regard to the granting of firearm

licences.

(64) The GPF should adhere strictly to the statutory criteria

for the grants of firearm licences.

(65) No attempt should be made to correct previous

indiscriminate grants of firearm licences by a general

recall and re-issue of existing licences.

(66) The Minister of Home Affairs should utilise his statutory

powers to make standard and uniform regulations with

regard to firearm licensing so as to guard against

allegations of political interference.

The Coroners Act:

(67) The definition of “coroner” in section 2 of the Act should

be amended to make every magistrate of each

Magisterial District a coroner for such District.

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(68) Section 17 of the Act should be amended to allow a

magistrate of another Magisterial District to hold either

an inquest or inquiry where the magistrate of any

Magisterial District is unable to do so.

(69) A coroner’s office should be administratively established

to hold inquests or inquiries where the magistrate or

magistrates of any Magisterial District is unable to do so.

It should be staffed with magistrates with national

jurisdiction and fall under the administrative

superintendence of the Chief Magistrate.

(70) Coroners should be provided with investigative resources

to reduce their dependence on Police investigations to

enable them to conduct independent investigations

expediently rather than to continue to rely solely on

Police investigations.

(71) There should be a holistic review of the Coroners Act to

achieve its high ideals and remedy its current

deficiencies and application.

Guyana Defence Force


The Coast Guard

(72) Adequate increase in manpower should be achieved, if

possible, within the present calendar year (2004); and

the Defence Board should seriously review the support

given to the Coast Guard.

(73) Adequate funds should be granted to permit the

financing of regular, long-range maritime patrols.

(74) Adequate inshore patrol vessels should be acquired to

enable the suppression of illegal fishing, narcotics

trafficking, gun-running, illegal migration and contraband

smuggling. There should be a presence in the Corentyne

area, in particular, to suppress smuggling.

(75) Adequate aerial and radar surveillance resources should

be acquired.

Reserve Force

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(76) There should be an increase in the stipend for reservists

to attend periodic training.

(77) There should be a schedule of incentives to attract

reservists with academic qualifications and skills.

(78) Regulations should be promulgated to protect the jobs of

reservists when they are called out on duty or training.

(79) The Drill Halls [training centres] in Regions 3, 7, 8 and 9,

should be reactivated and those in other regions should

be improved.

(80) There should be a special budget to help it to perform

effectively.

(81) The Guyana Defence Board should create a separate

establishment and organisation structure, similar to that

of the regular Force, showing the strengths and detailed

descriptions of the various units.

Air Corps

(82) The aerial surveillance capacity of the GDF should be

greatly improved through recapitalisation efforts. Such

efforts should include the completion of repairs to its

helicopter (which is the only one in Guyana) and one of

its two Skyvans which currently needs overhauling.

(83) Adequate arrangements should be made for recruitment

as well as local and overseas training of pilots and

engineers, and retention in service of all skilled

personnel.

(84) There should be increased operational employment of

aviation resources in coastal, maritime and border

surveillance and the Air Corps should be assisted in a

more concrete manner to conduct routine patrols in

cooperation with the ground forces and Coast Guard,

respectively.

(85) Reconnaissance/surveillance aircraft should be acquired.

(86) Any resulting benefits to the Force from employing the

Air Corps as a revenue earning arm of the Force should

be compared with the benefits likely to accrue to the

country from the interdiction of contraband activities on

the country’s border and the detection of illegal fishing

and other violations of its maritime zone.

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Joint Operations

(87) The Guyana Defence Board should give serious

consideration to the role of the Guyana Defence Force in

maintaining internal order with the Guyana Police Force

and other civilian agencies and make concrete plans for

their joint training.

(88) Members of the GDF be should be conferred with powers

of arrest and detention limited to the occasions such as

may be necessary for the express purpose of maintaining

order thereby giving effect to the wisdom and foresight

underlying the statutory imposition on the GDF of a

public duty to maintain public order.

Structure

(89) There should be improved and regular aerial patrols and

surveillance by the Air Corps.

(90) There should also be improved and regular maritime

patrols and surveillance by the Coast Guard.

(91) The strength of the reserve Force should be increased in

all regions which possess coastlines or international

borders; that is to say, all regions except the Upper

Demerara- Berbice Region.

(92) The Defence Board should adopt and treat as a priority

the GDF’s proposal of outlining a National Defence

Strategy.

(93) The Chief of Staff should submit draft regulations for the

consideration of the Defence Board.

Ethnic Balance:

(94) The GDF should adopt recruitment procedures which

must take into consideration cultural, sociological and

psychological imperatives, designed to attract Indo-

Guyanese in particular to the membership of the GDF.

(95) Recruitment procedures should have a particular focus

on the Indo-Guyanese community because of its general

disinclination to join the GDF; these should not be to the

neglect or exclusion of other ethnic groups.

(96) No person should be excluded from enlisting in the GDF

except on the basis of competitive merit.

(97) The GDF should conduct a public information campaign

designed to remove negative misperceptions about its

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recruitment policy with particular focus on Indo-

Guyanese communities.

(98) The public information campaign should highlight the

inclusionary ethnic recruitment and retention policy of

the GDF in terms of:

a) the need for greater Indo-Guyanese

representation in the interest of achieving

greater ethnic balance;

b) the benefits of military training to individuals,

communities and the nation at large;

c) the non-exclusionary measures such as the

provision of a bill of fare which caters to an

ethnically diverse military population;

d) due respect and regard for diverse religious

practices; and

e) secure from all officers including senior ranks

an attitude of respect for lower ranks.

(99) A multi-ethnic recruitment panel should be formed to

exemplify an ethnically diverse GDF and to conduct

recruitment in all the regions.

(100) Recruiting officers should be sensitised to the logistical

problems which can physically impede recruitment in

some regions and the cultural, sociological and

psychological factors which can stand in the way of the

recruitment process, particularly in the Indo-Guyanese

community, and should be willing and able to deal with

such impediments with reasoned persuasion. Promotion

Boards or Panels should also be similarly reflective, if

possible.

(101) Without prejudice to military demands and efficiency,

members of the GDF should not be assigned duties away

from their nuclear family for unnecessarily prolonged

periods.

(102) The disciplinary codes of the GDF should specifically

proscribe racial harassment and provide for effective

disciplinary sanction.

(103) The Defence Board should consider whether the

minimum period of contractual service can be reduced to

two years without prejudicing the effectiveness of the

GDF as a whole.

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Accountability to Civilian Authorities

(104) There is no need for the creation of a Ministry of Defence

and a dedicated Minister of Defence.

(105) The relationship between the Board and the Force should

be referred to the Board for serious re-examination in

light of the provisions of section 12 of the Act.

(106) There should be a bridging device between the Board

and the Force in the form of a ‘Defence Bureau’ or a

cognate grouping, as an agent of the Board under

section 12, answerable exclusively to the Board.

(107) The Force should be accountable to the National

Assembly because of its central importance to national

defence, its internal security functions, and the size of its

budgetary allocation.

Financial Accountability:

(108) Capital expenditure should not be placed under the

administrative responsibility of the GDF.

(109) The GDF should not be granted additional financial

responsibility.

(110) There should be a measured increase (commensurate

with increased cost) in the limits to contracts for supplies

and services to meet increased costs.

(111) A collaborative relationship between those responsible

for capital expenditure and those responsible for current

expenditure should be established.

(112) An imprest based on programme budgeting under the

control of a responsible financial officer in the Office of

the President should be considered.

Guyana Fire Service


(113) The Minister should cause a needs assessment of the

Service to be done in light of changing social conditions

and appropriate action should be taken in order of

priority.

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(114) Since the supply of water is of paramount importance to

fire-fighting efforts, the Minister should use his office to

ensure that fire hydrants are supplied with adequate

water for fire–fighting purposes.

(115) Select personnel from the rank of Leading Fireman /

Woman must be trained to function at the rank above

this, without delay.

(116) Salary increases should be made for the lowest ranks

(Leading Fireman / Woman) apart from any across- the-

board increase.

(117) The Public Service Ministry should be approached for

assistance in recruitment of clerical personnel, as a

matter of urgency.

(118) Immediate efforts should be made by the Minister to

acquire at least one fire boat for the GFS in the short

term.

(119) The issue of who bears legal responsibility for the

maintenance of the fire hydrants should be speedily

resolved, even if it requires legislative intervention.

(120) Additional fire stations must be established between

Ogle and Rosignol and Georgetown and Timehri, with

dispatch.

(121) Communities that benefit from the presence of fire

stations should bear part of their maintenance costs.

Structure:

(122) The Minister should amend the Schedule to the Fire

Service Act to increase the number of Divisional Officers

pari passu with the number of units.

(123) The Anna Regina Fire Station should be upgraded and

designated a unit and be placed under the “command,

direction and general management” of a Divisional

Officer.

(124) The administrative structure of the GFS should be so

fashioned that every station or location, which is not a

unit, should be made a sub-unit of a particular unit so

that devolution of central authority can occur in a

structured manner in consonance with its command

structure.

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(125) The Minister should amend the Regulations to correct the

present structural anomaly whereby the rank of Assistant

Divisional Officer, which is provided for by the

Regulations, does not exist in the structure of the GFS

but there is in existence a rank of Cadet Officer for which

there is no provision in the Regulations.

(126) Both the authorised and actual strength of the clerical

and office support staff should be increased to

adequately address the needs of the GFS and the

practice of utilising fire-fighting personnel to perform

such functions should cease forthwith.

(127) The auxiliary membership of the GFS should be

increased significantly.

(128) There should be a comprehensive review of the

Regulations to bring them in conformity with social

changes and current economic and other realities.

Ethnic Balance:

(129) The GFS should conceive, design and promulgate such

policies and practices that make it an attractive option in

the open labour market and portray the image,

particularly to the Indo-Guyanese and other non Afro-

Guyanese, that the GFS is an organisation which caters

to ethnic diversity within its membership.

(130) The necessary measures should be implemented to

rectify the ethnic imbalance in the GFS.

(131) Measures should be designed to ensure that membership

of the GFS does not entail unnecessary hardship or

inconvenience to any ethnic group.

(132) In its quest to redress the ethnic imbalance, the GFS

must be cautious not to sacrifice training, discipline and

operational efficiency at the altar of ethnic balance or

greater ethnic diversity.

(133) Whilst the GFS must strive to enlarge its pool of human

resources for recruitment, this must be aggressively

pursued without lowering the entry qualification levels.

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(134) Recruitment should at all times be based on the

principle of competitive merit.


(135) The promotion policy must be regularised to become

consistent with constitutional changes, so that the PSC or

its delegate is not fettered by the acts of the Ministry of

Home Affairs.

Guyana Prison Service


(136) As the prison population increases, there must be a

commensurate increase in the actual and authorised

strength of the security personnel of the GPS.

(137) Timely efforts should be made, within the constraint of

available budgetary resources, to increase the salaried

and non-salaried benefits currently accorded to prison

officers, in order to attract suitably qualified applicants.

(138) The GPS should desist from the practice of utilising

Assistant Prison Officers to independently perform

functions of a security nature or any statutory function

and should confine them to the role of auxiliaries to

Prison Officers.

(139) Commensurate with the recruitment of more suitably

qualified persons as Prison Officers, there should be less

reliance on the services of Assistant Prison Officers.

(140) The recommendations of the Criminal Law Review

Committee approved by the Commission in this Report

should be implemented by the Judiciary, Magistracy and

other relevant public authorities.

(141) Adequate monitoring devices and warning technology

should be installed or upgraded in prisons such as

21

Georgetown, New Amsterdam and Mazaruni to enhance

their physical security capacity and capability.

(142) Firearms provided to the GPS should be restricted to

firearms which can be employed discriminately in target

selection.

(143) In addition to monitoring devices, warning technologies

and appropriate firepower, there should be periodic

checks of prisoners and prisons for weapons, implements

for breaking, and other unauthorised items.

(144) There should be a constructive regime of activities

geared to beneficially occupy prisoners’ time, such as

learning useful skills e.g. masonry, carpentry, joinery,

agriculture; or, in reading books e.g. in electronics and

mechanics.

(145) In this regard the GPS should secure the assistance of

the relevant State institutions and non-governmental

organisations to provide instructors and teachers on a

periodic basis.

(146) The Mazaruni Prison should be expanded and provided

with the requisite human and material resources for

greater prison intake as a solution to the overcrowding

problem in the Georgetown Prison.

(147) The Georgetown Prison should be rehabilitated and its

facilities improved and modernised if found to be

economically feasible.

(148) There should be a female remand prison in the vicinity of

Georgetown.

(149) The Director of Prisons should be given more autonomy

generally and in relation to recruitment and promotion in

particular.

(150) The Director of Prisons should be given the co-operation

of all the related agencies such as the Magistracy and

Judiciary, the Parole Board, the Probation and Welfare

Department, the Ministry of Home Affairs and

Government institutions which provide technical training

and instructions.

22

Structure:

(151) Immediate attention should be paid to promoting

suitable Assistant Prison Officers to the next level; then

gradually reducing the ‘authorised strength’ of Assistant

Prison Officers and increasing the ‘authorised strength’

of Prison Officers, as a consequence.

(152) The Public Service Commission should consider

delegating to the Director of Prisons its appointment and

promotional function regarding subordinate staff.

(153) The risk of over-burdening the Georgetown prison with

too many high-security-risk prisoners should be reduced

by the transfer of the convicted to the more commodious

Mazaruni Prison after completion of its physical

rehabilitation and structural expansion.

(154) Efforts should be directed to making the gender

composition of the prison staff rationally proportional to

the gender composition of the inmates.

(155) At the Timehri Remand Centre, where release of most

inmates is imminent, the GPS should emphasise their

rehabilitation and reintegration into society.

(156) The Chief Medical Officer must be apprised of his duty to

ensure that daily visits are made to prisoners by medical

officers, as required by regulation 48.

(157) Placement of staff members at specific prison locations

should relate to the functional objectives of that prison.

Ethnic Balance:

(158) Efforts to attract the services of qualified Guyanese of all

ethnicities should be bolstered by better levels of

remuneration.


(159) The Chancellor of the Judiciary should be asked to alert

the Magistrates and Judges as to their responsibility for

oversight of the prison system and encourage them to

23

make prison visits since such visits would enable them to

make informed decisions on sentencing.

(160) The Minister should establish a Board of Visiting Justices

for each prison in compliance with section 46 of the Act.

(161) The Visiting Committee should ensure the satisfaction of

the prisoner’s dietary requirements and report to the

Director of Prisons if necessary; hear complaints from

prisoners and report to the Minister if necessary; and

bring to the attention of the Director administrative

matters requiring his attention.

(162) The Chief Medical Officer in furtherance of his statutory

duties should ensure that a government medical officer

is assigned to each prison and that he makes daily visits

thereto.

(163) Officers-in-Charge should discharge their responsibility

for ensuring that sick prisoners are not left without

medical attention.

(164) Staff of the Georgetown prison and other prisons should

especially be apprised of their liabilities for involvement

with prisoners in financial transactions, food smuggling

and other racketeering and should be duly sanctioned for

misconduct in these respects.

24

Part 1

The Guyana Police Force

25

Section 1:Functions and Operations

In this section, the Commission examines the changing

context of the functions and operations of the GPF,

taking into consideration national and international

developments.

The Guyana Police Force (GPF) is a statutory body established

under section 3(1) of the Police Act, Chapter 16:01. Its functions

are defined in section 3(2) of the said Act which provides:

The Force shall be employed for the prevention and detection of crime, the preservation of law and order, the preservation of peace, the repression of internal disturbance, the protection of property, the apprehension of offenders and the due enforcement of all laws and regulations with which it is directly charged and shall perform such military duties within Guyana as may be required of it by or under the authority of the Minister.

Functions

Since the prohibitions and mandatory duties imposed by the

criminal law exist for the purpose of preserving peace and good

order in the country, the basic and essential function of the GPF

can be compendiously described as ensuring and enforcing

compliance with the negative prohibitions and positive mandates

imposed by the criminal law. The performance of this basic and

essential function is therefore largely co-existent with the

performance of the statutory functions outlined in section 3(2).

As stated in section 3(2), the primary function of the GPF is

the prevention and detection of criminal conduct. Therefore, the

functional operations of the GPF must be necessarily

dichotomised into the main categories of preventative policing,

and investigative policing.

Since crime prevention is causally related to the non-

occurrence of criminal conduct and crime investigation is

premised on the occurrence of criminal conduct, crime

prevention is pro-active in that it seeks to prevent even the

commission of inchoate crimes, while crime investigation is re-

active in that it responds to criminal conduct which has already

taken place i.e., after the public interest has been criminally

26

offended. As a matter of simple prudence, crime prevention must

take precedence over crime investigation in the order of the

functional operations of the GPF. The time-worn adage

“Prevention is better than cure” is of beneficent relevance.

However, it would be a mistake to take the view that the

dichotomy of crime prevention and crime investigation is hard

and fast, or distinctly separate since crime investigation does

enjoy some causal relationship with crime prevention. An

energetic and effective investigative capability can have a

deterrent effect on criminal activities since the belief or

perception that a crime can be committed without discovery or

without subsequent apprehension and punishment, is often an

effective cause for its commission; while a contrary belief often

provides a powerful deterrent to an inclination to commit it.

Crime may be triggered by personal considerations and/or

societal factors. People may be motivated to commit crimes by

reason of need, greed, malice, revenge and so on and as the

Guyana Trade Union Congress (GTUC) pointed out in its

presentation:

Considerations such as retarded economic growth, unemployment and the level of consensus and cohesion in the society, reflective of the approach to, and state of, politics in the State must also be taken into account.

Whatever the personal and societal causes, which are

extrinsic to the GPF and over which it has no control, the GPF

holds a statutory responsibility for crime prevention and must

prevent such causes from being translated into criminal conduct.

The more these causes exist, the greater must be the capacity

and efforts of the GPF in the area of crime prevention. The lesser

the efforts at crime prevention are an operational success, the

greater becomes the need for crime investigation and detection.

In terms of the priority of functional operations,

investigative policing must take second place to preventative

policing. However practically, it is the extent to which the need

for investigative policing increases that determines the extent to

which the effectiveness of preventative policing has decreased.

Therefore, paradoxically, the need to strengthen the

investigative capabilities of the GPF reflects the shortcomings of

27

preventative policing — though it is recognised that “no society

is ever free of crime” as stated by the GTUC.

Most presenters who appeared before the Commission

placed emphasis on the need to improve the investigative

capabilities of the GPF. The Commission is of the view that, while

not denying the necessity of improving and expanding the

investigative capabilities of the GPF, the mistake can easily be

made of addressing the need for developing the investigative

capabilities of the GPF without first addressing the need to

strengthen its foremost preventative capacity. It is a defeatist

position to seek to place reliance more on the reactive function

of investigative policing rather than on the pro-active function of

preventative policing.

Policing

It is interesting to note that some presenters place

increases in crime rates squarely at the feet of Guyana’s social

and governance problems and advocate that the solution to the

increases in crime rates is to be found in the resolution of the

country’s social and political problems. They have therefore

stated that “increases in the crime rates do not necessarily

reflect failure on the part of the Police.”

While the Commission is of the view that social and

political instability may contribute significantly to increases in

criminal conduct and that the resolution of the country’s societal

and political problems may result in a subsidence in the crime

rates, the Commission is unable to find that “increases in the

crime rates do not necessarily reflect failure on the part of the

Police.” The Commission finds it more accurate to say that

increases in crime rates do not necessarily wholly reflect fault on

the part of the Police, since there may be failure without fault.

It is the Commission’s view that increases in crime rates

must be viewed from the perspective of the failure of the GPF to

the extent that the GPF has the statutory responsibility for crime

prevention. However, there may be a reasonable and plausible

explanation for such failure which may absolve the GPF from

fault. The chain effects of a debilitated and ineffective

preventative policing policy or capability should not be under-

28

estimated. Not only does it necessitate more investigative

policing but also it eventually puts unnecessary and greater

pressure on the judicial system in criminal proceedings. To the

extent that the criminal justice system has gradually become

clogged with the increase in the number of criminal charges and

the resultant delay in the delivery of criminal justice, to that

extent has pro-active preventative policing yielded ground to

reactive investigative policing. Even the prison system has

become overburdened by the large numbers of convicted

prisoners, and prisoners on remand awaiting trial.

The point must be strongly made that the GPF cannot

adopt a policy that facilitates or enables the commission of

criminal offences by negative preventative policing, and then

react to the commission of such offences with positive

investigative policing. Preventative policing must always be

recognized as the foremost operational function of the GPF.

The progressive increase in the number of offences relating

to drug-trafficking and back-tracking (illegal emigration or alien

smuggling) are caused by need and greed — the need of the

consumers of illicit drugs and the greed of those who seek to

exploit such need; the need of persons to enjoy a perceived

better quality of life in the North American metropoles and the

greed of those who seek to exploit such need.

In both of these areas of criminal activity, the preventative

measures adopted by the GPF to counter the inclination of those

involved have been either non-existent or ineffective. This is

evidenced by the large number of charges relating to drugs and

illegal emigration which the Police lay before the Courts, and by

the place of origin of the offences. Whatever preventative

measures are being employed by the GPF seem to be directed

principally at preventing the successful completion of criminal

enterprises rather than the initiation of those enterprises. For

example, forgeries of documents for illegal emigration are

committed long before the “back-trackers” arrive at the Cheddi

Jagan International Airport. Yet, it is principally at that location

that preventative measures are directed and focused. Similarly,

drug related offences commence before or at the time that

29

importation of drugs commences; but few or no resources are

directed to stemming the tide of importation.

If Guyana is a recognised trans-shipment point for drug

trafficking to the industrialised and wealthy nations, surely

preventative measures must be directed to preventing Guyana

from being so used. Non-entry rather than non-exit should be the

principal objective of preventative policing with regard to illicit

drugs. Preventative measures seem to focus principally on

preventing exportation rather than preventing importation. The

preventative barriers seem to be so erected as to protect the

welfare of foreign states rather than the national welfare.

In these two areas of criminal conduct, the protection of

Guyana’s welfare coincides, and is not inconsistent, with the

protection of the welfare of other states. However, Guyana’s

commitment to international co-operation in combating crimes

with a foreign element is no justification for not taking effective

preventative measures in the protection of Guyana’s welfare in

particular. There is absolutely no reason why the GPF should

structure its functional operations to fulfil Guyana’s commitment

to international police co-operation to the neglect of its own

welfare, especially since, in the sphere of illicit drug-trafficking,

Guyana’s welfare coincides with the protection of foreign states

when Guyana is being used as a trans-shipment point. The focus

of preventative policing in the areas of drug-trafficking and back-

tracking should be more in the direction of preventing the

initiation, rather than the completion, of criminal enterprises.

There is reason to believe that the number of persons

arrested and prosecuted from the efforts of preventative policing

at the Cheddi Jagan International Airport Timehri evidences the

tip of an iceberg of criminal activities relating to the lucrative

enterprises of drug-trafficking and back-tracking which precede

whatever offences take place at that airport. The objective of the

GPF in its preventative police function and operations must be

the elimination of the entire iceberg and not just its tip which is

merely the belated manifestation of a series of related criminal

activities. After all, the objective must be to prevent all criminal

activities within the jurisdiction and not just to prevent the illegal

exportation of illicit drugs and people from the jurisdiction.

30

While it is recognised that the GPF has limited resources to

physically police the 214,970 square kilometres of Guyana with

its sprawling and porous overland borders, cognisance must be

taken of the fact that the population is relatively small (less than

800,000) and live essentially in large or small communities. In

order to offset the disadvantage of the inability to physically

police the entire area, it is absolutely necessary that a sound

national criminal intelligence system be established and

maintained. It is an impossibility to effectively practise

preventative policing in the context of Guyana without a proper

information network.

The Commission received testimony that persons are

generally not disposed to provide information to the Police

because of the danger of leakages and the fear of reprisals.

However, persons are usually not too unwilling to provide

information to the Police on the basis of personal confidence and

trust. For this reason, members of the GPF must be encouraged

and supported to identify potential sources and to win over their

confidence and trust on the personal level. This necessarily

means that the identities of Police informers must be a matter of

strict confidentiality even within the GPF itself. Personal trust and

confidence sufficient to induce the provision of confidential and

sensitive information take time to cultivate and should not be

unduly nullified by inconsiderate transfers. It is believed that the

effectiveness of the functional operations of the GPF in both the

spheres of preventative and investigative policing has been

adversely affected by the disruption of lines of information

through ill-considered transfers of officers and ranks in the not

too distant past.

The escape of five dangerous inmates from the

Georgetown Prison on the 23rd February, 2002, was followed by

an unprecedented high spate of criminal activities which

involved robbery, murder, kidnapping for ransom and so on. The

preventative policing arm of the GPF was so paralyzed that the

very maintenance of law and order was under threat and the

Force itself became “fair game” for violent attacks and

executions. The Buxton/Friendship area was so infected with

lawlessness that it virtually acquired the status of state within a

state.

31

It was very clear from the inception that the escapees were

being joined and supported by other criminal elements within

society and the clear objective was not to leave the jurisdiction in

flight but to raise funds by robberies and kidnappings for ransom

for the purpose of arming and equipping themselves to challenge

the forces of law and order. The situation demanded timely,

resolute and decisive preventative action by the GPF that was

not forthcoming. Consequently, the lack of a timely and

appropriate response by the GPF gave the forces of lawlessness

the time and opportunity to gain the upper hand. The criminals

were so emboldened by their successes that members of the GPF

were executed and criminals with AK 47 and other ‘military’ type

weapons attacked Police stations with gunfire. The response of

the GPF to all of this was even more unsatisfactory. The gates of

Police stations were locked and sandbag defences in the

compounds were erected. The situation at that stage forcibly

highlighted not merely the debilitated condition of the

preventative policing arm of the GPF but also the significance

and relevance of article 32 of the Constitution which provides:

It is the duty of the State, the society and every citizen to combat and prevent crime and other violations of the law...

Eventually, it took a combined effort by the GPF, the

Guyana Defence Force (GDF) and society to quell lawlessness

and restore law and order to an acceptable level.

Special Units

In light of the enormity and nature of the threat to law and

order by the five escapees and their supporters, it was not

surprising that most presenters recognised the need for a squad

of well equipped and well trained police personnel to deal with

armed and dangerous criminals. However, the Commission also

received extensive complaints about police excesses and

unlawful killings, and these were often blamed on the so-called

Target Squad (or Black Clothes), which is currently intended to

perform the specialist function of dealing with serious violent

crimes.

32

The Commission was urged by some to recommend that

this unit be disbanded or at least the re-deployment of all its

serving officers elsewhere in the GPF. Experience in other

countries, however, suggests that the problem of human rights

abuses is due less to one of individual wrongdoing than to the

very nature of the specialist unit itself. Accordingly, disbanding

the unit to merely replace it with another unit might not resolve

the underlying problems. The Commission therefore

concentrated its attention on considering how best to make any

such unit, or ideally small teams of specialist officers deployed

on a regional basis, properly accountable for their activities.

The first problem noted was the organisational and

administrative ambiguity that seems to surround this unit. The

special unit was variously called by senior police officers, the

Anti- Crime Task Force, the Target Squad, the Target Special

Squad, the Target Anti-Crime Unit, and the only thing that could

be agreed on was that the unit being discussed wore a distinct

uniform, coloured black. Perhaps more worryingly, the Unit does

not feature on the organisational chart provided by the police, so

its line of command is not immediately obvious.

The Commission was informed that the special unit was

created on September 19th, 1996, and is part of the Criminal

Investigation Department. The 2000 Symonds report which

carried out a forensic study of current arrangements in the GPF,

referred to this unit as the Anti-Crime Task Force, but also

confusingly called it the “Quick Response Unit”, when there is a

separate Quick Reaction Group, which has apparently very

different duties (handling petty crime). At least, the name and

its place within the organisational structure need to be clearly

explained to the general public. Moreover, the Commission

endorses Symonds’ conclusion that “it is recognised that (this)

area of work is very difficult and there is a clear need for written

terms of reference and written operating procedures” (page 51).

Secondly, given that it is this unit more than any other that

is likely to be engaged in the use of force (and potentially the

lethal use of force); there is a special need for strict control over,

and discipline in, members of any such squad. The Commission

believes that any members of such an expert squad must be

33

specially selected and trained. They must be subject to regular

integrity testing, and regular training and re-training, not merely

in the accuracy of their weapons, but in the circumstances in

which the use of force is lawful and when not. There should also

be a regular rotation in the membership of any such squads, to

ensure that the necessity of having occasionally to use force

does not become a matter of routine.

Thirdly, any officers of this unit — like all officers of the GPF

except those engaged in under-cover work — must wear

authorised uniforms and make every effort to identify

themselves to suspects.

The Commission has been made aware of the alleged

existence of a so-called Phantom Squad (or even squads). It has

not been possible for us to determine if any such body exists,

although there is considerable anecdotal evidence suggesting

that there is a practice of ‘organised killings’ underway. Some

allege that these killings are totally unrelated to the police, and

are simply the result of organised crime. Others suggest that the

failures in policing to tackle serious and violent organised crime

have facilitated (and some would argue, necessitated) the

emergence of an alternative form of deterrence. Yet others

allege that these killings have the connivance of, and may even

be organised, by the authorities themselves, by way of off-duty

or unidentified members of the ‘Black Clothes’ squad.

It is not possible for the Commission to come to a formal

determination as to which, if any, of these allegations is

grounded in fact. It can, however, say that: (a) any Anti- Crime

Task Force must always be clearly identifiable; (b) all killings

must be adequately investigated, and (c) the authorities must

distance themselves from all such killings and reinforce the fight

against such crimes. The Commission believes that if its

recommendations in this report about better investigative

techniques, tighter disciplinary systems, and greater

accountability are endorsed and implemented, any such

Phantom Squads should disappear.

Investigation

34

While both crime prevention and crime detection depend

heavily on the existence of reliable information networks

between the GPF and the communities, crime detection is

particularly heavily dependent on scientific investigations.

The emergence of DNA as a highly reliable tool for crime

investigation has not escaped the attention of the GPF since the

GPF often solicits the assistance of their counterparts in Trinidad

and Tobago for DNA to be carried out. Despite this recognition,

there has been no aggressive drive on the part of the

administration of the GPF to attain any level of capability in this

area of crime detection. It is not prudent to continue to rely on

Trinidad and Tobago for assistance in this area. Trinidad and

Tobago is having more than its fair share of criminal activity with

attendant crime detection problems and it is not unreasonable to

assume that, in the utilisation of its DNA capability, the national

interest of Trinidad and Tobago will take precedence over that of

Guyana. Timely responses and results can hardly be expected.

Moreover, the utilisation of the DNA capability of Trinidad and

Tobago will necessitate the testimony of DNA experts from that

country in the courts of Guyana. The local courts have no extra-

jurisdictional power of compelling their appearance to testify.

The GPF should at least commence to take steps towards

achieving a satisfactory level of DNA capability.

The scientific laboratory of the GPF must be served by

scientific experts. The system of rank and regimentation will

always be a deterrent to such experts joining the membership of

the GPF. The GPF should contract the services of such experts

from the society at large without any requirement that such

experts be members of the GPF. Such a policy has been adopted

in accessing the services of forensic pathologists and there is no

reason why it should not be extended to other specialized areas

of forensic investigation. The GPF cannot afford to continue to

simply rely on its own internal limited expertise and

unnecessarily deny itself the services of competent forensic

experts to be found in the society at large.

It should be noted that courts are generally more inclined

to accept the scientific opinions of experts, who are not members

of the GPF, when such opinions are in consonance with the case

35

for the prosecution. The rationale for such inclination lies in the

fact that an expert who is not a member of the GPF is unlikely to

have his opinion influenced or coloured by the prosecutorial

interests of the Police since his interest lies in science and not

the obtaining of convictions.

The office of the DPP has drawn attention to the paucity of

Police experts in the fields of handwriting, fingerprinting,

ballistics and so on. Training in these areas is usually offered to

members of the GPF. There is no reason why a sufficient number

of persons should not be trained for deployment in all the

Divisions so as to obviate the necessity of having such

investigative examinations conducted centrally at Eve Leary,

Georgetown.

Legal Advice

The office of the DPP has also expressed dissatisfaction

with the conduct of the Police in precipitately instituting serious

criminal charges before obtaining its advice and then submitting

the file later for legal advice. Dissatisfaction has also been

expressed by the same office with the length of delay caused by

the system of transmitting Police files to and from the Office of

the DPP.

The complaint is that Police Files destined for the office of

the DPP have to pass through and be ‘minuted’ by a series of

ranks and officers in the chain of command structure on their

way to the Office of the DPP and then ‘minuted’ again on their

way from the Office of the DPP to the investigating ranks. It is

quite possible that the precipitate institution of serious criminal

charges before legal advice is sought has much to do with the

internal recognition of the time-consuming practice which

obtains in the transmission of police files to and from the Office

of the DPP.

The Commission sees no reason why the control and

command structure of the GPF should not be relaxed to ensure

the expeditious receipt of legal advice. It should suffice that

Police files for advice are ‘minuted’ to the DPP by the officers in

charge of the investigations to enable direct transmission to and

36

from the office of the DPP. Investigating ranks should be free to

access the advisory services offered by the Office of the DPP

without necessarily going through the long and tardy command

and control structure of the GPF. The seeking of legal advice

should be encouraged rather than discouraged. Moreover,

investigating ranks are afforded the opportunity of discussing the

legal issues relevant to their cases with the Office of the DPP and

of presenting their own views of the matter to the legal adviser.

The same applies to Police prosecutors who encounter legal

problems in court.

There is no legal prohibition against the GPF having their

own in–house legal advisers to assist investigating ranks.

However, it must be noted that the DPP can assume

constitutional control over all criminal proceedings. Therefore,

such legal advice will always be subject to the overriding

constitutional powers of the DPP. There are at present members

of the GPF who are lawyers. It is recommended, however, that

before such persons can be allowed to officially proffer legal

advice to the GPF in criminal matters, they should be seconded

to the Office of the DPP for about two years. Thereafter, subject

to the opinion of the DPP as to whether a longer period of

attachment is necessary, they can be attached to various

divisions of the GPF as in-house legal advisers. The office of the

DPP can always function as de facto consultants to such legal

advisers. It should be noted that, in the past, when the Office of

the DPP seconded Attorneys-at-Law to the Police as legal

advisers they had to attain the level of Senior State Counsel and

could have always consulted with the Office of the DPP whenever

consultations were viewed as necessary.

Duties

Two organisations and other presenters have vigorously

submitted to the Commission that all ‘military’ functions should

be removed completely from the GPF. The premise of these

submissions seems to be the mistaken but, widely-held, notion

that everything to do with drill, parades and chain of command

by rank is ‘military’. One organisation in particular expressed

the view that the structure and training of members of the GPF

are too ‘militaristic’ and detracts from its ability to be service-

oriented.

37

The Commission has noted that among the statutory

functions of the GPF are “the preservation of law and order, the

preservation of peace, and the repression of internal

disturbance”. In the view of the Commission, such functions

cannot be removed from the GPF and therefore some basic

public order training is necessary for all members of the GPF.

Moreover, any unit that is created specifically to deal with the

repression of internal disturbance must necessarily undergo

more than basic `military’ training.

The Commission has further noted that there may be Police

duties that can arise which do not necessarily have anything to

do with the repression of internal disturbance but which may

necessarily involve a military-style exercise e.g., the illegal influx

of a large civilian Brazilian contingent into the mining areas of

Guyana which requires mass expulsion.

The Commission recognises the need for the GPF to be

service-oriented and community-friendly. However, the

Commission is of the view that the traditional structure and

training of the GPF are not necessarily inconsistent with, nor do

they necessarily detract from, its duty to serve.

Management

Various presenters have submitted to the Commission that

the GPF has a ‘militaristic’ command and control structure, which

inhibits the satisfactory performance of its duties. Such

presenters have argued that there is over-centralisation of power

and authority in the GPF that stifles the initiative of ranks within

the structure and that power and authority ought to be devolved

commensurate with the devolution of function.

Reference has already been made to the ‘minuting’ of files

for legal advice through the rank structure on its way to and from

the Office of the DPP. Another example referred to by presenters

is the granting of station bail. Even though a person has been

arrested and detained by a policeman of a particular station and

section 21 of the Police Act confers on the member of the GPF for

the time being in charge of the Police station the power to grant

bail, the policeman in charge of the station does not feel free to

38

exercise this statutory power unless he receives clearance from

a senior officer of the division.

If a policeman has been assigned the function of being in

charge of a station, he ought to be sufficiently responsible to

exercise his discretion as to the granting of bail in accordance

with section 21 of the Act. Even though a member of the GPF is

legally authorised to seize and detain property, he is

administratively prohibited from returning that property without

the approval of a senior officer even though investigations have

clearly revealed the further detention of that property to be

unnecessary.

The point is that though function has been delegated or

devolved, there is a tendency not to delegate or devolve power

and authority to a commensurate extent. Power and authority

remain unnecessarily over-centralised and decision-making

becomes bottlenecked to central authority. The system seems to

be more control-oriented than service-oriented. A balance has to

be struck to ensure that the public interest is not sacrificed at

the altar of administrative control.

The protection and service offered by the GPF should be at

the same level for 24 hours every day. Although Police stations

are open 24 hours per day, it is common knowledge that the

level of service after 16.30 hours is not on par with the level of

service offered between 08:00 hours and 16:30 hours. Very

often, the night duty policemen are juniors who cannot make

decisions or are women who do only desk work. Prompt and

effective action can hardly be expected on reports made during

the night. This is particularly so in police stations outside of

Georgetown. Indeed, members of the public are told by such

policemen that they cannot deal with their report and are

instructed to return the following day.

There is need for some operational re-structuring to

redress this lack of service and to ensure that the level of service

offered during the night is at least satisfactory if not on par with

that offered during the daytime. One presenter, in referring to

this situation, described the senior officers as “bureaucrats”

whose duties end at 16:30 hours. The Commission appreciates

39

that the GPF may be suffering from manpower shortage but is of

the view that this lack of service can be addressed by a

restructuring of the shift system.

The Commission recognises the limited manpower

resources in relation to membership of the GPF. In such a

situation, there is need for proper human resource management

to make the best use of and obtain the maximum output from

the limited resources available. Trained members of the GPF

must be allocated to the performance of core police functions

and contracted civilians can perform functions that do not

require police training. For example, it makes no sense using

members of the GPF, trained in policing, to examine vehicles for

road fitness. Such a function can be performed by contracted

mechanics.

Neither is it sensible using trained members of the GPF to

process passport applications. Trained clerks can perform such

duties. It is also senseless to use members of the GPF trained in

policing to do typing and secretarial work. Rural constables can

effect service of summonses or other documents in the rural

areas.

In all these areas, police training is not essential and

scarce Police human resources are being wasted. This also

undermines the important sense of responsibility that should

accompany the conferring of police powers. It would be

particularly important if the Commission’s recommendations

about pay are to be accepted in principle; that policemen and

officers concentrate on police duties, not the various ancillary

tasks that could and should be delegated to others. The Police

administration should practise better human resource

management so that the essential or core functions of the GPF

can be more expansively attended to by trained members of the

GPF.

Conduct

The very beneficent nature of the primary function of the

GPF i.e., to protect and serve the public should endear members

of the GPF to the public and attract public co-operation. If, as it

now appears to be the case, there is a growing alienation

40

between sections of the public and the GPF, then either the GPF

is not performing this function or is performing it in an improper

manner.

Members of the GPF, especially those whose duties involve

dealing and inter-facing with the public, must be properly

educated and instructed as to become inseparably wedded to

the fundamental notion that they have a public duty to protect

and serve the society and the society has the right to their

service and protection under public law. They must fully

appreciate that the conferment of statutory powers and authority

is not for the purpose of elevating them to a position of

repressive domination over the public but to provide protective

service to the public. Bombastic and egotistic demonstrations of

the exercise of such powers are not merely inconsistent with the

rationale underlying the conferment of such powers but

constitute disreputable and discreditable conduct that can only

alienate the public.

Their superiors must constantly remind members of the

GPF that the conferment of public power carries with it the

burden of public responsibility and that the exercise of public

power necessarily involves the responsible exercise of discretion

governed by the public interest. The proper exercise of Police

powers earns public respect while the despotic and repressive

exercise of such powers, while it may induce fear, earns

disfavour and disrespect.

Members of the GPF who see no distinction between fear

and respect are likely to be shunned and avoided and are likely

to provoke non-co-operation from the public. Yet, the successful

performance of their statutory duties often necessitates a co-

operative public and such members are forced to rely on more

intimidation to induce involuntary co-operation. The GPF can

neither achieve the reputation, nor fulfil its role of public

protector by dint of conduct that alienates and induces public

fear. Public co-operation with the GPF will be voluntarily

forthcoming only if the public perceives the GPF as a body of

disciplined and responsible persons imbued with statutory

powers for their (public) protection and therefore as persons who

must be befriended and supported. The Commission has heard

41

evidence from several persons who have attested to the

unwarranted use of force and intimidation by members of the

GPF.

Public disenchantment and loss of confidence in the GPF,

however, are not caused only by the wrongful or improper

exercise of statutory powers but also by neglectful omissions to

perform their statutory duties. The Commission has been

apprised of cases in which reports of criminal conduct to Police

stations are met with “bureaucratic excuses” for non-

performance. Reporters are often told by policemen that: there

is no one present at the station to deal with the report; the

matter cannot be dealt with by the particular station; there is no

Police vehicle available to transport investigators to the scene;

there is no driver available to transport investigators to the

scene; or there is no gas or fuel in the Police vehicle. These

excuses are often seen as frivolous and mundane and they do

not go down well with the public, causing disappointment and

loss of confidence in the ability or willingness on the part of

members of the GPF to perform their statutory functions.

Members of the GPF have the duty of enforcing the

criminal law; as such, their conduct must be exemplary. Various

presenters have taken the view that falling ethical standards are

rendering our society less law-abiding and more undisciplined

and the GPF, being a mere extract from this society, necessarily

reflects the lawlessness and indiscipline which pervade and

permeate society.

The Commission recognises that the lowering of such

standards in society poses a problem of recruiting personnel of

the right quality. However, since those entrusted with upholding

the law must themselves be capable of reflecting the standards

of conduct which the law demands of every citizen, proper and

effective training and strict discipline must be considered as all-

important for all members of the GPF. Members of the GPF

simply cannot portray themselves as mere extracts of a lawless

and undisciplined segment of society. They cannot allow

themselves to be provoked into uncouth behaviour, uncivil

language and oppressive conduct.

42

Individuals have testified before the Commission of being

assaulted or otherwise mistreated by members of the GPF simply

because they questioned their modus operandi or their authority.

Such responsive conduct on the part of members of the GPF is

inimical to and inconsistent with the basic function of the GPF to

protect and serve. Members of the GPF must be trained to

remain unmoved and dispassionate under the strain of

provocation. Unlawful retaliation to resentfully critical or

provocative conduct from members of the community with whom

their duties bring them into confrontation cannot be allowed to

become or to remain a characteristic or feature of the Police

operational behaviour. This is an area in which the evidence

suggests that the GPF has shown an operational weakness and in

which criticisms have been made with some justification.

Corrective efforts in training need to be focused on this area.

Authority

The main opposition party, the PNC/R and others have

alleged and cited instances of political interference in the

functional operations of the GPF. The PNC/R has claimed that

such interference undermines the independence of the GPF as a

national institution and erodes public confidence in the manner

in which the GPF discharges its statutory duties.

It is therefore instructive to analyse the scope and effect of

section 7 of the Act which provides:

The Commissioner shall, subject to the general orders and directions of the Minister, have the command and superintendence of the Force, and he shall be responsible to the Minister for the peace and good order throughout Guyana, for the efficient administration and government of the Force, and for the proper expenditure of all public moneys appropriated for the service thereof.

It is clear that section 7 confers upon the Commissioner

the overall power of command and superintendence of the GPF.

The power to command and superintend is inherently an internal

power and cannot be shared with someone extrinsic to the GPF.

Since the Commissioner has the statutory power of overall

internal command and superintendence of the GPF, section 7

further confers upon him the responsibility or accountability to

43

the Minister for peace and good order throughout Guyana, for

the efficient administration and government of the GPF and for

the proper expenditure of all public moneys allocated to the GPF.

The Commissioner therefore has a statutory power of internal

control and command coupled with commensurate statutory

responsibility to the Minister.

Section 7 also confers upon the Minister a power to issue

general orders and directions to the Commissioner and has

rendered the power of internal command and superintendence of

the Commissioner, subject to such general orders and directions.

Since the Minister is extrinsic to the structure and composition of

the GPF, his power to issue general orders and directions can be

only to the Commissioner.

Unlike the Commissioner, the Minister is conferred with a

statutory power without a statutory responsibility. But the

burden of responsibility always accompanies the conferment of

power. The Minister may be without statutory responsibility but

this does not at all mean that he has been conferred power

without responsibility since he, as the Minister responsible for

internal security, bears an executive responsibility to the

National Assembly for matters of internal security. It is in

recognition and furtherance of this executive responsibility that

Parliament has seen it fit to confer upon him the power to give

general orders and directions to the Commissioner to which the

power of the Commissioner to command and superintend the

GPF is made subject.

Since the statutory power of the Minister relates to an

executive function and responsibility, the power to issue general

orders and directions to the Commissioner is necessarily limited

to general orders and directions of an executive nature and not a

power to issue general orders and directions which involves

encroachment on the internal power of the Commissioner to

command and superintend the GPF. The words “subject to” must

therefore be interpreted to mean “in accordance with” or “not

inconsistent with” and not as implying any overriding power in

the Minister to command and superintend the GPF. The Minister’s

executive power to give general orders and directions to the

Commissioner is for the purpose of enabling him to establish and

44

define the parameters within which the power of internal

command and superintendence of the Commissioner is to be

exercised. It enables the Minister to establish executive

objectives by which the Commissioner must be guided in the

exercise of his internal power to command and superintend. But

the Minister’s power to give general orders and directions to the

Commissioner does not extend to ordering or directing him how

the GPF is to be commanded or superintended.

The Minister may, in consonance with his power of

executive control, give general orders or directions as to what

functional operations should be carried out but cannot direct how

such functional operations should be carried out. The proper test

seems to be whether the particular order or direction falls within

the executive decision-making powers of the Minister or the

administrative decision-making powers of the Commissioner. A

useful analogy is perhaps the executive powers of an executive

director and the administrative power of a general manager. It is

the view of the majority of the Commission that the statutory

powers to give general orders and directions conferred on the

Minister by section 7 are not to enable him to exercise any power

of command and superintendence of the GPF (which is internal to

the GPF) but to lay down the goals and objectives which will give

direction to the Commissioner in his command and

superintendence of the GPF.

Joint Operations

The primary function of the GPF is to maintain internal law

and order (section 7 of the Police Act). One of the statutory

functions of the Guyana Defence Force is the maintenance of

order in Guyana (section 5 of the Defence Act). Thus, both of

these bodies have the statutory function of maintaining internal

law and order. However, it is instructive to note that, while

members of the GPF are conferred with powers of arrest under

section 17 of the Police Act, the Defence Act does not confer

similar powers on members of the GDF. Section 17(1) of the

Police Act provides:

It shall be lawful for any member of the Force to arrest without a warrant –

45

(d) any person whom such member of the Force finds disturbing the peace; or

(e) any person whom he has good cause to suspect of having committed or being about to commit any felony, misdemeanour or breach of the peace.

As a matter of practice, the GDF normally does not perform

internal security functions. Such a task is normally left to the GPF

some of whose primary functions are:

the preservation of law and order, the preservation of the peace, the repression of internal disturbance…” (section 3 of the Police Act).

In the recent Buxton episode of pervasive lawlessness, the

GPF proved unable to quell such lawlessness and the GDF had to

be called upon to help to restore and maintain law and order and

to provide a safe corridor for persons using the East Coast Road

passing through Buxton. Even though some presenters

expressed the view that the GDF should not at all be used for

internal security purposes, it is clear from section 5 of the

Defence Act that the GDF has a statutory function of internal

security for which Parliament can be credited with wisdom of

foresight and precaution. The Commission is of the view that

there will be occasions when joint action is required and

therefore proposes no legislative change.

The view has been expressed that, in deploying the GDF to

Buxton, its effectiveness was handicapped by the absence of a

clear mandate by the Defence Board. The Commission however

finds it difficult to express its concurrence with this view. The

Commission is of the view that the limited effectiveness of the

GDF could have been due largely to the fact that the Defence Act

(section 5) imposed upon the GDF a policing function of internal

security without conferring upon it enabling Police powers

relevant to that function e.g. GDF has no statutory power of

arrest or apprehension. In the absence of such enabling statutory

powers, it was essential that the GPF which has the primary

Police function with enabling Police powers should have had the

primary role of internal security since the GDF has no enabling

police powers. In matters of internal security, whenever it

becomes necessary to deploy the GDF, the operations should

always be joint between the GPF and the GDF with the GDF

46

performing the supporting role. The role played by the GDF has

been more fully addressed by the Commission later in this

Report.

Issues

The Commission has concentrated in this chapter on the

general thrust of the GPF’s operations and functions. It is

extremely important in our view to address in some detail issues

of investigative and preventative policing, the changing nature of

crime, the concerns about excessive use of force and the role of

special squads, the need to place modern scientific technology at

the service of crime detection skills, and the overlap between

policing and military-type functions. These were all issues that

were alluded to explicitly in our Terms of Reference. However,

there is a whole range of other issues about police functions and

operations that were brought to the Commission’s attention by

witnesses, and it would not disregard them. They all seem to

have some merit, and we will transmit them onwards with little

comment to the Assembly and others for their attention.

Cases were made for the following:

A plan of action to deal effectively with allegations of

domestic violence, special areas for interviewing victims, a

specific log book to record such crimes (in accordance with

the Domestic Violence Act), the importance of having

female staff in attendance, the need for standardised

domestic violence report forms, and for the police to

develop the capacity and willingness to lend support to

victims, or re-direct them to other agencies for counselling;

Arrangements for appropriately trained persons on duty to

take statements, especially from children, and more

generally, increased awareness in policemen about the

needs of particularly vulnerable groups (children, domestic

violence victims, Amerindians in lock-ups, people with

mental disabilities);

The introduction of, or stricter compliance with, existing

guidelines on the handling of evidence and scene-of-crime

incidents, response to victims’ rights and need for feed-

47

back on case development, the importance of early

medical help to injured people (whether witnesses, victims

or alleged criminals), the maintenance of hygienic

conditions in lock-ups, the importance of effective record-

keeping for later court action, the securing of constitutional

safeguards for detainees and the proper grant of bail, as

well as information regarding the penalties which will

follow from any tampering with evidence, etc.

Effective enforcement of the disciplinary codes which exist

to deal with police officers involved in any allegations of ill-

treatment of detainees, or associating with known

criminals. More emphasis needs to be placed on the

importance of respecting the rules of confidentiality, so

that witnesses will more willingly come forward to assist

the police with their inquiries.

An extensive series of very practical, detailed and concrete

recommendations was also made in the Symonds report,

specifically with reference to the improvements necessary to the

Criminal Investigation Department. The Commission was

somewhat surprised to learn that the current Crime Chief was

unfamiliar with these recommendations, and would urge that

they be examined. Elsewhere, the Commission has suggested

that a detailed plan of action for improvements in the GPF be

developed and submitted for its consideration. Unfortunately no

such plan was submitted in time for the Commission’s

consideration.

Recommendations

With regard to the “functions and operations” of the GPF

the Commission recommends as follows:

1. A preventative policing policy should be revived and

effectuated.

2. The investigative capabilities of the GPF should be

strengthened.

3. Non-entry, in addition to non-exit, of illicit drugs should

be made a focus of preventative policing.

48

4. A sound national criminal intelligence system should be

established and maintained.

5. GPF members should be encouraged to identify

potential informants and gain their trust.

6. Ill-considered transfers of Force members, so as not to

disrupt well-established information networks, should be

avoided.

7. The name and place within the Force structure of that

special squad known as the ‘Black Clothes’ squad

should be clarified for public information.

8. Strict control; careful selection; training; re-training;

discipline; special rotation of membership and the

requirement that those who are not working on under-

cover duties wear clearly identifiable by uniform, should

be enforced for members of special squads.

9. The means to conduct DNA testing should be acquired.

10. The recruitment of scientific experts from society at

large to serve the GPF scientific laboratory, and who

would not be inhibited by the requirement to carry GPF

rank, should be pursued.

11. More personnel should be trained in handwriting,

fingerprinting, ballistics and related fields and they

should be deployed in the divisions so as to reduce the

need for all such investigations to come to CID HQ.

12. The control and command structure of the GPF, as it

pertains to file transmission, should be relaxed so as to

obviate the need for extensive minutes and to expedite

receipt of legal advice from the DPP.

13. The means for greater use of legal expertise within the

GPF should be established and the secondment of Force

members, who are Attorneys to the DPP’s Chambers, for

49

about two years to acquire professional experience

should be considered.

14. A consistent level of ‘service and protection’ to the

public on a 24 hours basis should be maintained. If

necessary, the shift system, especially at rural and

hinterland stations, should be restructured

appropriately.

15. Civilians should be contracted to perform functions that

do not require police training as follows:

a. Examination of vehicles for road fitness certificates

b. Processing of passport applications

c. Typing and secretarial work

The serving of summonses and similar or related duties in rural

areas should be done by Rural Constables.

16. The use of common excuses (such as that “there’s no

transportation”) to cover-up neglect of duty should be

eliminated.

17. GPF members should be trained to remain unmoved and

dispassionate especially in the face of provocation.

Note: Annexed herewith is the independent view of

section 7 of the Police Act provided by Commissioner C.

R. Ramson S C.

50

S. 7 of the Police Act CAP 16:01

In determining the extent of the legitimate involvement of

the Minister of Home Affairs in connection with the operations of

the Guyana Police Force one has to consider S. 7 of the Police Act

CAP 16:01 and its ramifications in the wider context of the

political responsibility which the Executive, through the Cabinet,

has under the Constitution.

By ART 106 (1) of the Constitution CAP 1:01 there shall be

a Cabinet for Guyana which shall consist of the President, Prime

Minister, Vice Presidents and such other Ministers as the

President may appoint to it and by ART 106 (2) the Cabinet shall

be collectively responsible for the general direction and control

of the Government to Parliament. Furthermore, the President

may assign to any Minister responsibility for any business of the

Government, including the administration of any department of

Government: ART 1O7. The Minister of Home Affairs is the

Minister assigned responsibility for internal affairs. The reason for

the underscorings will become evident when the provisions of

the Police Act CAP 16:01 are examined in relation to the

functions of the Commissioner of Police (COP) and his

accountability to the Minister of Home Affairs (MOHA).

More particularly, reference to S. 7 of the Act above will

not be helpful without an understanding of the philosophy and

history relating to its enactment. Historically, the G.P.F. has been

the enforcement agency of the Government which is elected to

govern the State of Guyana and being a Department of the

Government, its administration falls within the responsibility of

the M.O.H.A., as contemplated by ART 107. The philosophical

underpinnings of the GPF have their origins in a

militia-type agency primarily geared to maintain Order and

prevent disruption of the orderly business of the State.

The GPF is responsible for the prevention and detection of

crime, the preservation of law and order, the preservation of the

peace …. and the due enforcement of all laws and regulations ..

…. (S. 3 (2)); and S. 7 provides:

“The COP shall, subject to the general Orders and

directions of the Minister, have the command and

51

superintendence of the Force, and he shall be responsible

to the Minister for the peace and good order throughout

Guyana, and for the efficient administration and

government of the Force …..”

It is axiomatic that peace and good order are inextricably

bound up in the Security of the State, (as explained in another

section of our Report) and, being responsible to the Minister, the

COP is accountable to him for the peace and good order

throughout Guyana and for the efficient administration and

government of the Force. The draftsman of this section could

not with greater pristine clarity have articulated the intentions of

the legislators who gave their studied and undivided attention to

the relationship which they found necessary to give effect to the

security concerns of the State. It bears repetition (see discourse

on Firearms Licence at p.149-154.) that, the segment of that

section under scrutiny is so excruciatingly plain that it would be

pleonastic to attempt any further expatiation of the rudiments of

its construction and interpretation by means of any empirical

analysis but the obvious, at times, eludes the invigilant and

therefore some elucidation is not without justification.

In this context, although it is common ground that the COP

has a statutory power of internal control and command coupled

with a commensurate statutory responsibility to the Minister, a

notion seems to have gained currency that the intrinsic nature of

the COP’s authority and the extrinsic power and duty of the

MOHA are mutually exclusive. Left uncontradicted, it would

present a danger greater than the mischief it purports to

address.

It therefore has become necessary to seek such semantic

and judicial assistance as may be available in support of the

integrated nature of the mutual and overlapping roles of these

office holders. S. 7, as a whole, has not been judicially

interpreted in Guyana as far as I am aware and, for this reason,

the clause “subject to the general orders and directions of the

Minister” has been made the subject of much controversy by

laymen, lawyers and politicians alike, thereby creating

perceptions which compound the security dilemma facing our

country. Laymen, understandably, take their cue from the

52

lawyer and politician but, regrettably, the last two have not

demonstrated the inclination to guide them by informing

themselves of the provisions governing the exercise under

scrutiny. Before this Commission, few witnesses, if any,

articulated with sufficient conviction, their awareness of the

purport and intent of this much misunderstood provision.

Megarry J in C and J Clark Ltd –v- Inland Revenue Comrs.

(1973) 2 ALL E.R. 513 in considering the phrase “subject to” in

relation to two provisions in a Statute ruled that “the words

merely had the effect of demonstrating which provision was to

prevail in the event of a conflict.”

At p. 520. letter “e”, he excruciates:

“In my judgment the phrase “subject” is a simple

provision which merely subjects the provisions of the

subject subsections to the provisions of the master

subsections. Where there is no clash, the phrase does

nothing: if there is collision the phrase shows what is to

prevail. The phrase provides no warranty of universal

collision”; and at p. 521, letter “e” he expatiates:

“An Act must be construed so as to be workable,

even if its language is in some degree inept, and it

must be construed so as to cure whatever mischief is

being aimed at” – UT RES MAGIS VALEAT QUAM

PEREAT.

And Lord Simonds in the House of Lords, explained in

Smith –v- London Transport Executive (1951) 1 ALL. E.R. 667 at

p. 672, letters “B-C”:

“subject to …… are naturally words of restriction.

They assume an authority immediately given and

give a warning that elsewhere a limitation on that

authority will be found”

Transposed into context of the relationship between the

COP and the MOHA it is pellucidly clear whose authority must

prevail in the event of a conflict and the interpretation above

postulates the subject and master configuration of power in the

form of the COP and MOHA. In other words, although the COP

has command and superintendence of the GPF this is subject to

the general orders and direction of the MOHA. Should the

53

Minister fail to execute this statutory duty he would be guilty of a

grave dereliction, the consequences of which may lead to

irreversible insecurity.

It may not be without some significance that in

determining dissimilar provisions of the Constitution and

legislation of Papua New Guinea, the Chief Justice, Sir Buri Kidu,

in Re-Philip Bouraga PNGLR. 175 at p. 185-186 had this to say:

“It does not say that a Minister has no power of

direction or control whatsoever over a department of

government of which he has political responsibility

…,” but he went on to assert that the Police Act (of

Papua New Guinea) “does not confer on the Minister

any power of direction or control over the

Commissioner of Police or the Police Force.”

In fact, Art 196 (2) of their Constitution expressly provides that

the Minister has no power of command within the Police Force

except to the extent provided for by a Constitutional law or an

Act of Parliament. (See p. 139 of AIGILO .V. MORAUTA 2002 4

L.R.C. p. 129.) In Guyana, the reverse is patently obvious.

It would therefore be self-evident that, given the simple

and precise words used in the Police Act of Guyana, any attempt

to exclude the MOHA from the command and superintendence of

the GPF could not, by the very nature of the exercise, be

achieved without doing irreversible violence to the plain

language of the legislation and the Constitution. Read in their

most neutral sense neither seems to have been attended by

phraseological convolutions that require forensic analysis.

As Massiah C reminds us in AG .V. MOHAMED ALLI et al

(Civil App #15/86) where the legislation “is drawn with

consummate preciseness and declarative lucidity in absolute and

unambiguous terms” its ordinary dictionary meaning should be

given to it. To do otherwise would be violative of the norms

relating to the canons of statutory interpretation.

For the reasons outlined above the claims of political

interference in the operations of the GPF, in general, and with

54

the functions of the COP, in particular, do not meet with my

approbation and cannot be sustained.

(all underscorings are for emphasis)

55

Section 2:Composition and Structure

In this section, the Commission examines the

composition and structure of the GPF.

Although the GPF was founded in 1839, it was established

in 1957 under section 3 (1) of the Police Act, Chapter 16:01, as a

public body. It has been described as a para-military Force

because, while its statutory functions are primarily related to

internal security and the enforcement of law and order within

Guyana, the Minister may require the Force to perform military

duties within Guyana under his authority. Section 3(2) of the Act

provides:

The Force shall be employed for the prevention and detection of crime, the preservation of law and order, the preservation of the peace, the repression of internal disturbance, the protection of property, the apprehension of offenders and the due enforcement of all laws and regulations with which it is directly charged and shall perform such military duties within Guyana as may be required of it by or under the authority of the Minister.

Role

One presenter recommended that the law should be

amended to remove from the duties of the GPF the necessity for

training in e.g., parades, drills and manoeuvres. There appears to

be a perception that the GPF in so doing performs military

functions and that if this were not so, more time and effort could

be expended on training relevant to core police functions.

The Commission has learnt that some of this training and

disciplinary activity are not, strictly speaking, military activity.

However, two of the main functions of the GPF are the

preservation of law and order and the repression of internal

disturbances, which may require operations perceived to be of a

‘military’ nature. The Commission therefore holds the view that

the GPF still needs some amount of relevant training and

discipline that may be perceived as ‘military’.

Following criticism that the structure of the GPF is “too

militaristic” is the recommendation that its control and command

structure, which is linked to its military genesis, should be re-

56

structured to allow for greater decentralisation and devolution of

authority, so that individual initiative can come to the fore and

not be unnecessarily or unduly stifled. The Commission would

expect that the Commissioner should, within his administrative

discretion, devolve and diffuse power and authority within the

GPF in accordance with the dictates of circumstances. A legal

structure which itself decentralises and distributes functions,

duties, powers and authorities may prove to be too inflexible to

meet changing circumstances and can give rise to serious

internal conflicts and disputes over the limits of authority.

Conflicts and disputes, which have their origin in legal structure,

cannot be administratively resolved.

Under section 7(1) of the Police Act (Chapter 16:01) the

Commissioner has general command and superintendence of the

GPF but is subject to the general orders and directions of the

Minister. The Commissioner, consistent with his general power to

command and superintend the GPF, is responsible to the

executive Minister for the general management and

administration of the GPF and the Minister himself has executive

responsibility to the National Assembly for matters of internal

security.

The principal assistants to the Commissioner in the

performance of his statutory functions and the discharge of his

statutory responsibilities are the Deputy Commissioners. During

the absence or incapacity of the Commissioner, a deputy

Commissioner can exercise the full power and authority of the

absent or incapacitated Commissioner (section 8). Since there

are now several Deputy Commissioners, each assigned specific

responsibility and duties along administrative and departmental

lines by the Commissioner, there will be need for close

collaboration among them in the general management of the

GPF, unless one of them is appointed to perform the duties of

Commissioner during his absence or incapacity. In order to avoid

such a cumbersome system of general management, it is always

preferable that one of the Deputy Commissioners be appointed

to perform the duties of the Commissioner during any prolonged

period of his absence or incapacity.

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Under section 9, Assistant Commissioners perform such

duties as directed by the Commissioner. Under section 28, the

Commissioner is empowered to divide Guyana into Police

divisions and sub-divisions. Guyana has been divided into six

divisions with sub-divisions. As a matter of practice, Assistant

Commissioners are usually assigned the command of divisions

with superintendents placed by the Commissioner in charge of

sub-divisions to work under the command of the divisional

commander. There may be divisions that are commanded by

officers below the rank of Assistant Commissioner. Depending on

the population of divisions, the Commissioner may divide a

division into several sub-divisions. However, the ability of the

Commissioner to do so may be circumscribed by the

unavailability of buildings and premises and proper

accommodation and facilities which are outside the control of the

Commissioner.

Administration

Under section 29 of the Act, it is the Minister who has the

responsibility for providing buildings and premises for the use of

the GPF and suitable accommodation for policemen. Complaints

have been received by the Commission about the poor state of

accommodation and facilities provided for policemen. This has

forced a liberal attitude of allowing policemen the option of

returning to their homes even though circumstances may dictate

that they reside within easy reach of their stations in the event

that their services are urgently needed.

It is recommended that the matter of the availability of

premises, buildings and proper accommodation for policemen be

addressed since there are several divisions that require more

sub-divisions, police stations and in-house policemen to provide

satisfactory service. The proliferation of new and vast housing

areas e.g., Sophia, Eccles, Diamond etc., and the greater use of

Lethem as a trade route to and from Brazil, require more Police

stations and Police presence. The Commissioner of Police should

discuss the needs of the GPF with the Minister so that the

Minister may perform his statutory function under section 29.

Presenters have recommended to the Commission that

there should be more decentralisation and devolution of

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authority along demographic and regional lines, and have even

recommended that, consistent with the decentralisation of

governmental and administrative authority along regional lines,

there should be regional Police Forces commanded by regional

commissioners of police. The Commission recognises that, with

the need for more effective policing in regions which are

geographically distant from the central command in Georgetown,

there is some justification for the recommendation not only for

the decentralisation and devolution of the power and authority of

the Commissioner, but also the need for essential facilities and

services to be made readily available within the various divisions

e.g., forensic and legal services and training facilities.

Delimiting the power and authority of divisional

commanders should be the exception rather than the rule so as

to enable them to stand in the shoes of the Commissioner in

decision-making within the confines of their respective divisions.

If divisional commanders are sufficiently empowered and

authorised to act for, and on behalf of, the Commissioner in their

respective divisions and in-house essential facilities and services

are made available to the Divisions to meet their respective

needs, there should be no basis for the call for a multiplicity of

regional Police forces, each with its own regional commissioner.

Under section 10 of the Act, all other officers of the GPF:

shall be stationed in such divisions and attached to such branches as the Commissioner may direct and they shall perform such duties as the Commissioner may direct.

Under section 12 (1),

There shall be such number of subordinate officers and constables as may be required and the Commissioner may determine the duties to be performed for such subordinate officers and constables.

It is the Commissioner who has the administrative responsibility

of structuring the duties of officers, subordinate officers and

constables and determining their assignment to the various

divisions and stations. While it is the Minister who, under section

12(2), determines the classes and number of constables, who are

the frontline operatives of the GPF, it should be noted that his

power to do so is necessarily conditioned by the numerical

strength of the GPF. The GPF is currently well below its approved

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numerical strength1 — caused by recruitment problems — and

therefore the Commissioner is hampered and circumscribed in

the formation and implementation of an effective deployment

policy. There is the danger that, unless the numerical strength is

augmented, the GPF may well find itself with too many officers

and sub-ordinate officers relative to the number of constables,

for deployment for frontline duties. This can cause the GPF to

become too bureaucratically top-heavy rather than functionally

effective.

Special Constabulary

Under section 71 of the Act,

There shall be maintained a supplemental body of police styled the “Special Constabulary…

Section 78 (1) provides:

Every member of the Special Constabulary when called out for full-time service shall be deemed for all purposes a member of the Force and shall be subject to all the provisions of this Act as regards the discipline, powers and immunities of constables under Part IV, and shall be paid for his services as may be provided by Parliament, at the same rate as a member of the Force of equivalent rank.

The members of the Special Constabulary are divided into two

categories (1) those called out on full time service, and (2) those

not called out on full time service. The former are, for the

purpose of the Act, treated as regular members of the GPF and

paid accordingly for their services. But the Act is silent on the

position of the latter. According to the Act, there ought to be

members of the Special Constabulary who have not been called

out on full-time service unless the true position is that all

members of the Special Constabulary have been called out on

full-time service and are being paid for their services according

to the rates of regular members of the GPF. The Commission

observed that many members of the Special Constabulary, who

are being treated and paid like regular members of the GPF, do

no more than regular guard functions at public institutions and

the private homes of public officials. It is a waste of training and

financial resources to have such members of the Special

1 For regular Police this is 540 below authorized strength. The Special Constabulary is actually 164 more than authorized strength.

60

Constabulary performing guard functions especially at this time

when the GPF is below its numerical strength.

It does appear that guards should be employed to do guard

service. Personnel trained to perform as regular policemen and

policewomen should perform frontline and core police functions.

The Commission is of the view that a special review is needed in

relation to the structure of the Special Constabulary since section

71 clearly provides:

There shall be maintained a supplemental body of police styled the “Special Constabulary,” any member of which may be called out for service by the Commissioner, the Deputy Commissioner, any Assistant Commissioner, or any officer in charge of a division in any case where additional police are required for the preservation of good order.

The Commission does not understand how the calling out of

members of the Special Constabulary on full-time service to

perform guard functions can satisfy the purpose of preservation

of good order. The Commission does not understand why

members of the Special Constabulary, trained to perform as

regular members of the GPF, should be assigned guard duties at

public or private premises instead of being put to perform

frontline duties in the preservation of good order. It seems that

the very raison d’ etre of the Special Constabulary has been

largely disregarded, and the Special Constabulary is largely used

for unintended purposes.

Rural Constabulary

Section 84 of the Act provides

The rural constabulary shall be maintained under this Act and shall consist of subordinate officers of the rural constabulary and rural constables as hereinafter provided;

and section 85 of the Act provides:

The principal objects for which the rural constabulary is established are that its members may be capable –

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(a)in time of peace, of acting as an efficient auxiliary to the Force in the performance of such of their ordinary duties as the Commissioner shall deem fit; and

(b)in the time of internal disturbance or of external aggression, of at once assuming to the extent found requisite by the Commissioner the ordinary duties of the Force.

Unlike members of the Special Constabulary, members of the

Rural Constabulary are members of the GPF without being called

out for active duty by the Commissioner in exercise of the

powers under section 91(1), and have all the powers and are

entitled to all the privileges and immunities conferred by law

upon any constable (See sections 2 and 90(1)).

The Minister is empowered under section 88 to direct the

number and grades of subordinate officers and rural constables

who are to form the structure of the GPF from time to time. The

Commission is of the view that, at the present time when there is

some degree of reluctance on the part of young adults to join the

GPF, attention should be directed to the utilisation of the

auxiliary services which can be provided by the Rural

Constabulary — particularly in hinterland locations.

The Commission is of the view that the importance of the

auxiliary services which can be provided by the Rural

Constabulary, particularly in the Amerindian communities and

border areas, is being under-estimated and overlooked. For

example, it is difficult to see how the regular GPF can be

effective in policing the Guyana — Brazil border against the

importation and exportation of illicit items e.g., narcotics and

firearms and cross-border cattle rustling without the assistance

of members of the Rural Constabulary who reside in the districts,

who are au fait with the terrain and modus operandi of those

involved in such illegalities, and are skilled in horse-riding.

For this reason, the Commission disapproves of the neglect

in issuing precepts to many members of the Rural Constabulary

who have already taken the requisite oath and are performing

policing functions in those districts.

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The Commission notes that, even though section 93 of the

Act provides for members of the Rural Constabulary to be

remunerated for their services, members of the Rural

Constabulary do not receive their remuneration. While the

Commission is aware that many members of the Rural

Constabulary are prepared to provide voluntary services without

compensation, the existence of the Rural Constabulary would be

placed on shaky ground if it were to depend wholly on voluntary

service.

The Commission has received complaints from members of

the Rural Constabulary that they are finding it difficult to provide

auxiliary services in the Guyana / Brazil border districts without

any remuneration, or at least, some form of compensation for

the utilisation of their own resources. The fact that the present

rates of remuneration for members of the Rural Constabulary are

woefully inadequate and in need of review and revision is a

powerful indication that the importance of the Rural

Constabulary has been overlooked for too long.

The Commission is of the view that the Rural Constabulary

is an important statutory auxiliary to the GPF and can play a vital

role in assisting the GPF to maintain and preserve law and order

and enforcing the rule of law-especially at this time of numerical

deficiency in the regular GPF. To overlook its importance for

much longer can prove to be a mistake of gravity.

Supernumerary Constables

The Act provides for the Commissioner to appoint

Supernumerary constables, subordinate officers and/or

inspectors to be employed in the services of persons or entities

on special duties. Section 82 of the Act provides:

1) If in any case application is made by a person to the Commissioner for constables, subordinate officers and /or inspectors to be employed in his service on special duties, the nature of which duties shall be specified in the application, the Commissioner may, if he thinks fit, appoint men as supernumerary constables, subordinate officers and inspectors to be employed on special duties specified in the application.

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2) The Commissioner may appoint fit and proper persons to be officers

3) The men so appointed and employed shall be subject to all the provisions of the Act and the regulations made thereunder relating to discipline, punishment, powers and immunities of constables.

4) The person requiring their services shall defray the pay, expenses and the cost of uniform of supernumerary constables, subordinate officers, inspectors or officers. The cost of the uniform shall be paid annually in advance and the pay and expenses shall be paid monthly in advance to the Commissioner.

5) Proceedings for any sum payable under this Section may, on the complaint of an officer of police, be taken before any magistrate against the person liable to pay the sum.

The Commission does not see the need for the

Commissioner of Police to assume the responsibility of training

persons to be employed by private persons or entities on special

duties so that they can exercise police powers on such special

duties. The Commission is of the view that police powers should

be conferred in the public interest and not in private interests.

The notion of private policemen conferred with public law police

powers to serve private interests is not attractive to the

Commission.

The Commission does not see wisdom in the GPF being

burdened with the unnecessary responsibility of training and

disciplining personnel and ensuring that they are properly

uniformed and paid simply because they have been appointed to

exercise police powers. The Commission questions the rationale

underlying the appointments themselves since public powers

should not be utilised to serve private interests. The Commission

recognises that if people are to work full-time in security work

and have access to firearms, their recruitment and training are

very important. A system of oversight for such work should be

introduced, but this should not be the responsibility of the police.

Authority

While the Commission does not perceive any fundamental

defect in the current legal structure of the regular GPF, the

Commission sees the necessity for the proper legal interpretation

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to be put on section 7(1) of the Act so that the lines of authority

between the executive power of the Minister and the

administrative power of the Commissioner to command and

superintend the GPF can be defined with sufficient clarity. The

Commission feels that there are important administrative

adjustments that can be made in the GPF but such

administrative shortcomings that may currently exist do not arise

out of structural legal defects. The Commission is of the view

that once functions are assigned to persons with proven

capabilities, there should be commensurate decentralisation or

devolution of authority to them, without undue reservation.

While the Commission is cognisant of the fact that the legal

structure of the GPF does not decentralise the powers of the

Commissioner, but leaves it upon him to so do, the Commission

recognises the decentralisation of authority by structure is

inherently rigid and does not open itself to ready administrative

remedy as circumstances demand. The Commission prefers

administrative flexibility to structural rigidity in the context of the

GPF.

The Commission is of the view that the Special

Constabulary is being abused and it seems to have lost its way in

relation to its functions and operations. It is not necessary to

comprehensively review its structure and operations since it

does appear to be satisfactorily fulfilling its statutory function as

a supplementary body to the regular GPF.

The Rural Constabulary is viewed by the Commission as

the most important auxiliary to the GPF and ought not to be

neglected or overlooked- as appears to be the case. On the other

hand, the Commission does not see the public importance of

supernumerary ranks and views the statutory responsibilities of

the Commissioner in relation to supernumerary ranks as

unjustified under public law and an unnecessary burden. The

Commission recommends that Part XIV of the Act be reviewed

with a view to repealing it in its entirety.

The official organisational chart used by the GPF did not

appear to the Commission to accurately reflect the current

administrative structure of the GPF. It is little wonder that, the

65

testimony of very senior officers was at variance with it and

some irreconcilable factual details given at that time have since

prompted a written response by the GPF re-aligning the chart

with the acknowledged structure.

Recommendations

With regard to the “Composition and Structure” of the GPF the

Commission recommends as follows:

18. Some elements of the training and disciplinary activity

that may be perceived as ‘military’ should be

maintained.

19. More sub-divisions and police stations should be

established and police presence increased, especially in

new housing areas such as Sophia and high-crime-risk

areas such as Lethem, after careful analysis of the risk

of criminal activity.

20. Divisional commanders should be empowered to act for,

and on behalf of, the Commissioner in their Divisions.

21. The numerical strength of the GPF should be

augmented.

22. Rural Constables should be paid and they should be

issued precepts, as provided by statute.

23. The burden of training private security personnel should

be removed from the GPF.

24. Members of the Special Constabulary should be relieved

of guard duties and be allowed to function as true GPF

reserves.

25. Part XIV of the Police Act should be repealed.

66

67

Sections 3: Recruitment, Training and Promotion

In this section, the Commission examines the “terms

and conditions of employment, remuneration, training …

[and] criteria for promotion.”

Given the importance of the statutory functions of the GPF

and the fact that each and every member of the GPF is conferred

ex officio with considerable statutory powers and authority to

transgress civil rights in order to enable the GPF to fulfil its

statutory mandate to protect and serve the society, it is of

crucial importance that members of the GPF are endowed with

sufficient intelligence and sense of responsibility for the proper

exercise of such powers in fulfilment of the statutory functions of

the GPF.

Recruitment

It is instructive to bear in mind that persons of limited

intelligence but who are, nevertheless, conferred with official

powers are likely to bring to bear on the performance of their

duties not the power of intelligence but the power of office. The

induction into the GPF of persons of low or insufficient

intelligence is likely to result in a dilution of the quality of service

offered to the public and the abuse or misuse of statutory power

and authority to the detriment of the respectability and good

image which the GPF must command in the society.

It is a known fact that the GPF, for many years, has been

unable to attract an adequate number of high calibre persons to

enable it to discharge its statutory mandate. This would appear

to be one reason for the low esteem in which the Force is

currently held.

In order to attain the numerical level of personnel

essential, relative to the size of the population and the high level

of criminal activity with its changing face and new social

dangers, the inclination or temptation to relax or lower the level

of qualification must have been great or seen as compelling. But,

yielding to such a temptation or inclination would undoubtedly

have resulted in the induction into the ranks of the GPF of a

number of persons who may be unable to satisfactorily function

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even under strict supervision. In such a case, it is obvious that

the likelihood of misfeasance and malfeasance would have

assumed preference over the likelihood of non-feasance.

It was a choice hardly worth making and it is not surprising

that the general public is displeased and discontented with the

quality of service which is offered by the GPF. The indeterminate

number of incidents of criminal conduct which remain unreported

due to the expectation of inadequate or ineffective police

responses testifies to the level to which public confidence in the

GPF to perform its statutory duties and to fulfil its statutory

mandates has been eroded.

It is a matter of urgent necessity for the GPF to be re-

invigorated by a substantial infusion of quality membership. The

disinclination on the part of qualified Guyanese to join the GPF

has considerably shrunk the recruitment pool. This disinclination

is unfortunately common among Indo-Guyanese who comprise

approximately 48% of the population, causing quality to be

sacrificed at the altar of quantity. The twin requirements of

quality and quantity are not necessarily inconsistent with each

other provided that the disinclined can be attracted to

membership. Thus, it is essential to take urgent steps to increase

the attractiveness of membership of the GPF.

Presenters have emphasised the need for policing to be

perceived as an honourable and rewarding career, a view which

the Commission endorses. Additionally, steps should be taken to

make a career in policing attractive. Many witnesses argued that

current pay scales are unacceptable and too low to provide an

adequate standard of living; others thought that low pay might

be used as a justification for financial corruption; and yet others

thought that the level of pay should signal the importance of

policing as a profession, and one that is associated with a high

level of risk. Current salaries were cited as an important reason

why some traditionally under-represented groups were not

attracted to the Force.

The Commission recommends that the Government should,

as a matter of priority, review the salary structure of the GPF

with a view to making a substantial increase in remuneration

(subject to the imperatives of social welfare programmes and

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economic development). The objective is not to entrench existing

incompetence within the GPF but to enhance the career-

attractiveness of policing to attract career-minded recruits of

quality from every sector of the society. Since the objective is to

attract persons of quality for recruitment, it is recommended that

consideration be given to a substantial increase of pay at the

lowest level with diminishing progression towards the higher

levels.

Whenever such increases can be implemented, the

disciplinary and administrative authorities should concomitantly

seek to divest the GPF of the incompetent persons within

enabling statutory provisions. The efforts of the Government and

the disciplinary and administrative authorities of the GPF must

necessarily be complementary to each other to ensure that the

process of reversing the personnel-dilution does not become

unaffordably slow.

Under section 30 of the Act, the probationary period of

service for a person who joins the GPF as a constable is two

years. During this period of probation, security of tenure is

limited and the Commissioner is authorised to dispense with the

services of a probationary constable on the ground of physical

and mental unfitness to perform policing duties or the

unlikelihood of his becoming an efficient or well-conducted

constable at the end of the probationary period. If the constable

is found to be efficient and of good character, mentally and

physically capable of performing the duties of his office and is

well-conducted, he is confirmed in his appointment. It is

important to note that section 30 provides an outline of the

fundamental attributes required of each and every member of

the GPF. These are (1) Mental fitness (2) Physical fitness (3)

Efficiency (4) Good Character and (5) Discipline.

It may well be that section 30 has not been applied with

any degree of seriousness and that many ranks who ought not to

have been confirmed have been confirmed to the detriment of

the image of the GPF and the quality of service provided to the

public. It is necessary that section 30 be applied with due

strictness to ensure that the image of the GPF is restored and

that services of recruits who do not display the qualities required

70

of membership of the GPF are dispensed with inside their

probationary period of service.

The administrative authority is further empowered to rid

itself of the undesirables within the GPF under section 35 of the

Act. Subject to substantive and procedural fairness which

includes the right to be heard, members of the GPF below the

rank of inspector can be discharged on the ground that, having

regard to the conditions of the Force, the usefulness of the

particular rank or any other relevant circumstance, such

discharge is desirable in the public interest.

The present shortage of personnel of the GPF may militate

against the inclination of the Commissioner to exercise his public

interest power conferred by section 35. However, since section

35 premises the exercise of discretionary power to discharge on

considerations of public interest, the public interest should

dictate whether or not the Commissioner should exercise this

statutory power to discharge. It cannot be in the public interest

to continue to retain members of the Force whose competence is

doubtful or whose continued presence in the GPF can only be

detrimental to the GPF and the public welfare.

The disciplinary codes of the GPF as embodied in the Police

(Discipline) Act are, perhaps, the least objectionable manner by

which the services of members of the GPF can be terminated.

Under those codes, after being charged with, and found guilty of,

a departmental offence, the penalty of dismissal can be imposed

if the circumstances of the case so warrant. Serious or repetitive

breaches can justifiably be visited with the penalty of dismissal.

The Commissioner of Police is constitutionally empowered to

impose such a penalty on defaulting members holding the rank

of sergeant or below while the Police Service Commission (PSC)

is constitutionally empowered to so do in the case of defaulting

members of the rank of inspector and above.

The Commission has adverted to the statutory provisions

enabling termination of service to make the point that there are

adequate provisions to facilitate the recommended process of

reversing the personnel-dilution.

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The Commission is of the view that the GPF needs not only

to give greater attention to the quality of new basic recruits, but

to plan more effectively for its future officer contingent. There is

a need to develop a strong command structure and recruit

candidates capable of quickly achieving officer and senior

management grades. The Commission comments, elsewhere in

this section, on the issue of cadet schemes and recommends

that these schemes be re-examined.

In its recruitment drive to attract persons of quality to the

GPF, apart from the necessity of substantially increasing salaries,

the administration must aggressively target secondary schools.

Most of the distinguished senior officers in the not too distant

past were recruited as cadet officers from the top secondary

schools. Successful secondary school graduates should be

informed of the accelerated promotion scheme within the GPF

upon completion of cadet officers training with good prospects of

reaching the top echelons of the GPF at an early age. Moreover,

they should be informed that being a member of the GPF does

not stand in the way of obtaining a tertiary education but rather

facilitates and rewards it in the interests of both the officer and

the GPF. Indeed, some witnesses before the Commission urged

that financial and other incentives be provided to GPF members

to reward them for particular skills (e.g., language skills,

management diplomas etc).

Secondary school graduates who have not attained

academic success to enable them to proceed to tertiary level of

education should also be targeted. They should be informed that

the GPF offers them an alternative avenue to a successful career

once a sense of commitment and discipline is displayed.

Ethnicity

The ethnic imbalance between the Indo- and Afro-

Guyanese members of the GPF is noted elsewhere in this Report.

This imbalance points in the direction of a marked general

disinclination on the part of the Indo-Guyanese to join the GPF.

Such a general disinclination on the part of the largest

component of the Guyana population has contributed in no small

measure to the numerical deficiency of the GPF to the extent

that the GPF has been, and is being, deprived of the availability

72

of a substantially larger pool of human resources from which to

select its recruits.

It seems reasonable to suspect or even believe that the

administration of the GPF has felt impelled to make the difficult

choice between quantity and quality in the recruitment policy of

the GPF largely because Indo-Guyanese, who comprise

approximately 48% of the national population, have been

generally disinclined to offer their services to the GPF.

It is unfortunate that Indo-Guyanese who have contributed

so significantly to national development have not felt able to

contribute in proportionate numbers to the GPF when the very

security of the State depends so heavily on an effective, efficient

and professional GPF. The Commission has already made

recommendations to attract Indo-Guyanese to join the GPF when

dealing with the subject of “Ethnic Balance”.

The Commission wishes to point out that, despite the fact

that Indo-Guyanese have invariably been disproportionately

under-represented in the GPF, there has been and is a significant

number of Indo-Guyanese who have achieved commendation,

distinction and high office in the GPF. The achievements of these

Indo-Guyanese members and former members of the GPF belie

the perception among certain segments of the population that

the GPF is an institution in which the contributions of Indo-

Guyanese are unwelcome, unrecognised or unrewarded. They

also contradict the uninformed notion that Indo-Guyanese are

physically or attitudinally unsuited to the duties which

membership of the GPF entails.

It is important that such misperceptions be replaced by a

perception that the GPF is a truly national institution that

welcomes, recognises and rewards the contributions of service of

Guyanese of every ethnicity and offers fair and reasonable

opportunities for self-advancement based on merit and

satisfactory work performance and not on ethnicity. The GPF

must promote itself by public dissemination of such relevant

information.

73

It is not unnatural that recruits unfamiliar with the new

terrain of the GPF, and being at the lowest rung in its rank

structure, suffer from diffidence and are naturally reluctant to

voice any perceived or real grievance or report any problem

which besets them. They are more inclined to abandon the GPF

rather than suffer in silence. Such a problem or grievance may

arise from inter-personal relationships with each other or with

their superiors or from the operations of the system itself.

Recruits must be offered an avenue of having their grievances or

problems addressed in confidence without fear of victimization,

as an alternative to abandoning the GPF.

Training

The academic requirement of a sound primary education

for admission into the GPF seems somewhat archaic and may be

responsible for the lowering of the standards in the GPF. It is

arguable that a sound primary education in the not too distant

past entailed a higher standard of literacy and powers of

reasoning than in the present era. Nevertheless, the kind and

level of training which the duties of being a member of the GPF

demand must be related to the quality of the recruits.

Presumably, there is a minimum of literacy and

comprehension that all recruits must have to be receptive of the

basic training which is to be undergone. The Commission

recommends that the minimum educational criteria should be

raised to at least the level of a good secondary education.

It is essential that members of the GPF be properly

instructed as to the extent of their functions, duties, powers and

authority and responsibilities. Since the function of the GPF

involves, essentially, the prevention and investigation of criminal

conduct, members of the GPF must be armed with sufficient

knowledge to distinguish between conduct which is criminal and

conduct which, even if unlawful, is not criminal. Underlying the

functions, duties, power and authority of all members of the GPF

is criminal conduct, whether by commission or omission.

Members of the GPF, therefore, must be able to distinguish

criminal conduct from non-criminal conduct in order to determine

the extent to which their own power and authority can be

exercised. Instances of police involvement in non-criminal

74

matters have been brought to the attention of the Commission.

Such abuse of police powers is a source of public indignation and

disrespect for the Force.

Since the statutory powers of arrest, seizure and detention

are in derogation of the fundamental civil rights of citizens,

members of the GPF must be made acutely aware of the extent

and limits of their statutory powers under the provisions of the

Act. Any misuse of such power by a member of the GPF would

constitute a violation of the fundamental right of a citizen and

open the GPF to an allegation of abuse of police powers. It must

be clearly understood that the conferment of power under

statute is a responsibility imposed, and not a privilege accorded,

and therefore all statutory powers must be reasonably and

responsibly exercised and not abused or misused.

The law permits members of the GPF to use reasonable

force in effecting arrests. Members of the GPF must be instructed

that the use of excessive force is criminally unlawful and, as

enforcers of the criminal law, they should not infringe it. Since

members of the GPF are normally allowed to carry firearms in the

performance of their duties, they must be properly instructed as

to the circumstances in which it is permissible to resort to its

use. Training in the proper use of a firearm is an absolute

necessity and those who have not sufficiently been receptive to

such training should not be allowed to carry it. Manuals which

provide members of the Force with guidance as to the proper use

of firearms should be readily available.

Members of the GPF should appreciate the value of

community-friendliness and must be trained to conduct

themselves in a manner that would not alienate or antagonise

the public. Since the very nature of police function is public, and

requires interfacing with members of the public on a daily basis,

members of the Force must be imbued with the understanding

that the public comprises people with an infinite variety of

attitudes and dispositions that will often be at variance with their

own personal values. They must be trained to exercise tolerance

and restraint uniformly so as not to be provoked into the

unreasonable or unlawful use of their statutory powers. They

must be trained to deal with intemperate and unsavoury conduct

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without allowing themselves to be provoked into similar conduct

in response. An eminent Guyanese jurist once remarked in a

celebrated case that a member of the GPF cannot be heard to

say that the unpatriotic conduct of a member of the public was

likely to induce him to commit a breach of the peace i.e., he

must behave professionally regardless of the circumstances.

Members of the Force should be trained in courtesy and

politeness. Presenters have expressed disappointment with the

manner in which members of the GPF answer telephone calls and

have described their manner of speech as discouraging. No

doubt, the same impoliteness and discourtesy are often

experienced by members of the public who access police

stations seeking service. Such conduct does not inspire

confidence in the GPF since it reflects fallen standards to the

detriment of the image of the GPF. Some GPF members

insensitively display an open lackadaisical attitude in dealing

with complaints and reports to the dismay of complainants and

reporters who leave the police stations despondent in the

justifiable belief that “nothing will come out of this.” Such

conduct is a reflection of a lack of proper training and a lack of

appreciation of the fundamental function of the GPF i.e., to

protect and serve rather than to accord a favour of voluntary

service.

Police investigators should be trained to fully and

comprehensively investigate allegations of criminal conduct.

Since the objective of the investigator is not simply to discover

the perpetrators of crimes but to obtain evidence to enable

prosecutors to present as much relevant evidence as possible to

the court, investigators cannot be trained to focus simply on the

obtaining of admissions or confessions. Too often, investigations

comprise little more than the arrest of suspects and the

obtaining of admissions or confessions. Many prosecutions fail

for the simple reason that courts refuse to admit into evidence

such admissions or confessions which indicates a lack of training

on the part of ranks performing investigative duties.

Modern criminal investigations tend to utilise and rely on

more scientific methods of investigation and it is therefore

necessary for members of the Force to be specially trained in

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various areas of forensic investigation e.g., fingerprint

comparisons, handwriting comparisons, ballistic comparisons,

blood comparisons and hair comparisons. The necessity for the

CID to seek to acquire DNA capability has already been

mentioned and members of the CID should be selected and sent

overseas for specialist training at recognised institutions to

obtain or improve or update their capabilities. The enforcement

of the provisions of the Money Laundering Act will require

investigators with specialist training.

The high incidence of gun crimes and the recent

phenomenon of the use of military weapons by criminals who

operate in gangs and execute criminal enterprises with well-co-

ordinated efficiency matched only by their ruthless and

terroristic slaughter of their victims, speak with clarity to the

need for a highly-trained, well-equipped squad to confront such

criminals with a view to bringing them to justice. In order to

avoid human rights violations, this squad should be continually

under training and must be well-supervised, well- controlled and

well-disciplined. Even though such a squad will be called into

operation only sporadically as the need arises, its existence

should be a necessity and should have a deterrent effect on

those who are inclined to use firearms and terror indiscriminately

and ruthlessly in the commission of crimes.

One presenter recommended that members of the GPF

should be trained in the martial arts of self-defence such as judo.

Another presenter recommended that members of the GPF

should be armed with electric shock devices which cause

temporary disability. The point made by these presenters is that

the use of a firearm should not be the only means of self-defence

available to members of the GPF. The level of self-defence

responses which must be reasonable depends on, and varies

according to, the circumstances and therefore there is merit in

the point that the use of firearms should not be the only means

of self-defence available to members of the GPF. The

recommendations of presenters for alternative weaponry are

therefore worthy of consideration.

The Commission has noted that members of the GDF are

being trained in martial arts self-defence techniques. If so,

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members of the GPF who have the legal duty of enforcing the law

against the unlawful and dangerous on a daily basis would have

a better claim to such training. It has also been pointed out to

the Commission that such training assists in improving discipline.

The Commission is attracted to the idea that members of the GPF

should receive such training especially as section 30 of the Act

emphasises the requirement of physical fitness as a criterion for

confirmation of probationers.

The Commission is of the view that the lower the quality of

recruits, the greater the need for extensive and intensive

training to mould or remould the quality of their personalities.

Revision training should also be continuing since the negative

influences of society can overtake the benefits of training with

the passage of time.

The GHRA has recommended that members of the GPF

should be trained in “problem-solving” which, in this context, is a

technical term meaning that police officers are trained in

considering how best to resolve problems with the minimum

level of force or confrontation -whether it be handling a protest,

interrogating a suspect or handling an irate burglary victim at

the station desk. Police recruits should be trained in defining the

problem, acquiring and analysing information, working out

different possible approaches, and then adapting their approach

to the specific problem to be dealt with.

The Red Thread and Help and Shelter organisations

commended the GPF for committing its members to training in

developing proper attitudinal response to incidents of domestic

violence and child abuse. However, these organisations informed

the Commission that junior ranks have pleaded with them to

ensure that senior supervisory staff are also trained since the

latter give orders which run counter to the training the juniors

receive. These organisations therefore recommend that senior

supervisory staff be exposed to such training in order to avoid

such anomaly and conflict.

The organisations also testified that transfers of trained

staff from frontline areas are at times effected to the

disadvantage of communities benefiting from their services. The

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Commission therefore recommends that the placement of staff

should be done after deliberate and careful consideration by

those charged with such duties in which competences they

should be well trained.

The Commission is of the view that recruitment and

training are the two most important factors that affect the

quality of service, reputation and image of the GPF. The need for

quality recruits and proper and relevant training cannot be over-

emphasised. The Commission is of the view that a strategic

approach to training for the GPF is required. Concerns were

expressed about the extent to which the GPF has developed

short-, medium-, and long-term plans for training. The changing

nature of crime, the police response to it, international human

rights standards, and domestic legal developments all require

pro-active, rather than reactive, training programmes. Clear

objectives need to be set in these plans with emphasis on linking

training with the wider policies in order to ensure effective

succession planning within the Force.

Reference was frequently made in the GPF testimony to its

reliance on foreign training. While this may on occasion be

worthwhile, motivational, and even necessary, the Commission

felt that an over-reliance on training abroad was not necessarily

cost-effective or wise.

Moreover, basic training needs to be conducted to address

the many concerns raised before the Commission. It would seem

for example, that many recruits are unaware of basic

constitutional safeguards around powers of arrest, bail provisions

etc. and that proper instruction on these issues by competent

legal practitioners is essential.

Promotion

It is reasonably safe to assume that all career-minded

members of the GPF are desirous of being promoted. This ought

to motivate members of the GPF, whatever their rank, to perform

competently. But promotion cannot be based only on competent

or satisfactory performance at any given level, rather there also

has to be demonstrated the potential to perform competently or

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satisfactorily at the next higher level. Competent or satisfactory

performance at any given level cannot sensibly be sacrificed or

foregone for incompetent or unsatisfactory performance at the

next higher level.

Members of the GPF, who have attained a satisfactory level

of competence in the performance of the various duties at their

level, must be allowed to perform at that level so that the GPF

can benefit from their competence. However, such ranks can, in

the meantime, be identified for possible promotion and be

exposed to training relevant to performance at the next higher

rank. The satisfactory nature of their work performance cannot

and should not per se guarantee promotion but rather guarantee

their identification for, exposure to, and participation in such

training. The level of responsiveness to such promotion training

should determine whether a particular policeman is considered

for promotion. Only those policemen who have clearly

demonstrated a pre-determined level of satisfactory

responsiveness to promotion training should be considered as

qualified for promotion. This necessarily means that the GPF

must have in place systematic training programmes for staff at

all levels on the basis of which promotions will be made.

The Commission is of the view that GPF members who

have passed promotion training tests should not be promoted

immediately. Rather, successful GPF ranks should understudy,

for a specified period of time, those positions they are earmarked

to replace. Such an approach will impose a responsibility upon

superior officers who are to be promoted, to share on-the-job

information and training with those who are about to take over

their duties. To this extent some measure of continuity will also

be achieved.

Presenters expressed concerns about promotion being left

to the whims and fancies of the personnel making

recommendations to the Commissioner or the Police Service

Commission. As stated above the Commission recommends that

promotion should be based on the passing of standard promotion

examinations that will apply to all who have undergone

promotional training.

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The Commission also noted concerns about the lack of

transparency surrounding the current arrangements for

promotion within the Force. The Commission is of the view that

good management practice would suggest that effective and

transparent processes can only exist where adequate systems of

performance appraisal, good record keeping, and appropriate

training are provided for supervisors.

It is vital for the well-being of the Force, and for attracting

highly qualified candidates, that there be a strategic approach to

personnel management that would incorporate recruitment,

training, retention, and appropriate reward via promotion, for

good officers. Promotion Boards must be so composed as to

inspire confidence in the Force and in the general public as to

their fairness and transparency.

Officers

Of particular relevance to the question of developing the

future leadership of the GPF, the Commission studied the

command and superintendence of the GPF, noting that these

functions are chiefly the responsibility of gazetted officers who

occupy the seven highest grades of the Force from assistant

superintendent to commissioner. In accordance with section 10

of the Act, officers are charged with performing such duties as

might be directed by the Commissioner. These would include

the command of various divisions, departments, branches and

stations, and such officers, subordinate officers and constables,

as may be assigned to them.

The Commission is convinced that the changing nature of

crime in the country and the wider world, and the prevalence of

offences of a trans-national, financial and scientific nature,

require a higher standard of òfficer-ship’ than in previous times.

Unfortunately, the method of selecting and training officers has

evidently not been substantially improved to prepare officers for

these changing conditions. It is therefore necessary to re-

examine established methods of selection, training and

appointment in order to determine changes that could be made

to produce officers capable of leading the Force in the future.

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Evidence was led to the effect that three schemes

currently exist in the GPF for the selection of cadet officers as

follows.

(1) The “Internal Cadetship Scheme”, established in

accordance with Force Standing Order no. 22, and amended by

Force Order no. 23/85, outlines rules for the appointment of

suitable constables. The Commission is not satisfied that the

basic education and qualification criteria set are rigorous enough

to attract only those of high intelligence, especially in view of the

current requirement for entrants to possess only a sound primary

education and the undoubted decline of educational standards at

this level.

(2) The “Accelerated Promotion Scheme” presents

members of the Force below the age of 35 years and with a

sound educational background with the opportunity to be

identified for selection, special training and advancement, once

they have demonstrated commitment and desire to remain in

the Force for at least ten years. The Commission is not satisfied

that this scheme is wide enough to attract the most suitable

citizens, since selection and advancement are uncertain.

(3) The “Direct Entry Scheme”, established in accordance

with Force Standing Order no. 22, and amended by Force Order

no. 23/85, outlines rules for the appointment of suitable citizens

who wish to become cadet officers of the Force. This scheme

which was successfully used in the past to recruit officers who

subsequently held senior positions in the GPF, seems to have

been abandoned as a regular means of selecting cadet officers.

Evidence was also received that there has been resistance to the

scheme by the Police Association.

The Commission raised its concerns about these matters

with the Hon. Ronald Gajraj, Minister of Home Affairs who

affirmed that a scheme would be put in place in the near future

for the training of cadet officers. Notwithstanding these

assurances, the Commission firmly recommends that urgent

consideration be given to the examination of the three schemes

to determine whether any changes are necessary, and what

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should be done to place the selection and training of cadets on a

regular basis.

The Commission also recommends that, subject to the

rules for the selection of cadets, because of the number of

vacancies that exist, and the need to produce well-educated

officers, who are skilled in police duties, a Police Academy be

established with at least one intake of cadets every year.

Recommendations

With regard to “recruitment, training and promotion” in the GPF


26. Career attractiveness should be enhanced by e.g.,

review of salary structure and substantial increases in

remuneration.

27. The probationary period should be used to dispense

with personnel with undesirable character traits before

they become entrenched in the Force.

28. Urgent consideration should be given to the

examination of the three cadet schemes to determine

whether any changes are necessary, and what should

be done to place the selection and training of cadets on

a regular basis. A revitalised cadet scheme could be

canvassed among successful secondary school and

university graduates.

29. Efforts should be made to remove the misperception

that the GPF is the preserve of any one ethnic group

and to promote instead the concept of a unitary national

Force.

30. Recruits should be offered a confidential avenue to air

their grievances.

31. The minimum educational criterion for recruitment

should be raised from a sound primary education to at

least a sound secondary education.

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32. All GPF members should be made aware of the limits of

their statutory powers.

33. GPF members should be trained to appreciate the value

of being community-friendly, so as not to alienate the

public.

34. They should also be trained in courtesy and politeness.

35. Investigators should be trained to fully and

comprehensively investigate criminal allegations.

36. Proper instruction classes about constitutional

safeguards relevant to police functions such as powers

of arrest and granting of bail should be conducted.

37. A Police Academy should be established (with at least

one intake of cadets every year) due to the need to

produce well-educated officers who are skilled in police

duties.

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Section 4: Ethnic Balance

In this section the Commission examines, how to

“(give) effect to the need in the public interest that the

composition of the Disciplined Forces take account of the

ethnic constituents of the population” and give

“particular attention to …the methods and processes of

achieving greater ethnic balance.”

Ethnicity

Indo-Guyanese and Afro-Guyanese comprise the two

largest ethnic components of the Guyanese multi-ethnic society

(approximately 48% Indo-Guyanese and 36% Afro-Guyanese). In

the decade before Guyana secured political independence from

Britain, Indo-Guyanese and Afro-Guyanese competed for

dominant political space resulting in a rivalry which has been

sharpened by further religious and cultural differences, though

such differences have been overshadowed by the ethnic-political

rivalry.

In a society beset with such ethnic, political, religious and

cultural differences between the two largest ethnic components,

the rule of law must hold firm to prevent social fragmentation

and to ensure social cohesiveness. Not only must the law be fair,

but it must be fairly administered and enforced. A police force

stands in the forefront of law administration and enforcement

and therefore it is absolutely necessary that the GPF should

enjoy general public confidence in its capacity and resoluteness

to administer and enforce the rule of law without being

improperly influenced by the ethnic-political and other

differences which threaten the integrity of the social fabric.

It is a fact that the numerical strength of the Afro-

Guyanese in the membership of the GPF overwhelmingly

outstripped that of the Indo- Guyanese membership by a ratio of

5 to 1 for at least the past 30 years. Given the acknowledged

cleavages which permeate the body politic, except in rare cases,

this disproportionate Afro-Guyanese numerical superiority has

induced serious feelings of ethnic insecurity within the Indo-

Guyanese population. Such feelings have not escaped the

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activism of Indian rights’ advocates and organisations who have

renewed and re-echoed the historical call for an “ethnic

balancing of the composition of the GPF.”

Significantly, even though the Indo-Guyanese ethnic

insecurity concerns stem from treatment, perceived and/or

actual, by the Afro-Guyanese component of the GPF, few

submissions called for formal quotas. The call has not been so

much for the equating of the numerical strength of the Indo-

Guyanese membership with that of the Afro-Guyanese

membership, but rather for the membership to be so comprised

that the demographic disparity would be lessened to a significant

degree.

It is claimed that underlying the Indo-Guyanese feelings of

ethnic insecurity arising from the Afro-Guyanese domination of

the membership of the GPF is the greater degree of exposure

and vulnerability of the Indo-Guyanese population to racially-

motivated attacks, and the use or non-use of police powers by

the majority Afro-Guyanese membership of the Police in

responding fairly to these criminal acts. Moreover, propaganda

by politicians and some sections of the media seem designed to

exploit the ethnic composition of the Force (e.g., through

references to ‘kith and kin’).

The objective should not be the proportionate or even

equitable sharing of the risk of racial discrimination by members

of the GPF, but the elimination of such discrimination, as far as is

practicable. The concept of an ethnically reconfigured GPF must

be so premised that it would not transfer the negatives of the

ethnic-political rivalry into the membership of the GPF.

Indian rights’ advocates have also submitted that the Indo-

Guyanese cannot, and do not, rest comfortably in the knowledge

that their security and protection lie in the willingness of a

predominantly Afro-Guyanese police force to perform their

statutory duties fairly and to exercise their statutory powers

without regard to any racial/ethnic consideration. Such

advocates also submitted that there is the ever-present danger

that Afro-Guyanese members of the GPF may, for improper racial

considerations, be unwilling or reluctant to perform their

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statutory duties in the protection of Indo-Guyanese, especially

when their interest or security is being violated or threatened by

Afro-Guyanese. Here, the danger may be the result of omission

or neglect by Afro-Guyanese policemen. It is therefore argued

that there is the need to ethnically balance the GPF so that the

Indo-Guyanese population can be served and protected by Indo-

Guyanese membership of the GPF thereby obviating the danger

referred to above. Such an argument is based on the belief of

Indo-Guyanese victims that Afro-Guyanese police officers might

in the past have been disinclined to act in protection of Indo-

Guyanese against Afro-Guyanese offenders with the

consequence that justice was denied to them.

If one were to accord validity to such assumptions, then

the induction of Indo-Guyanese in greater numbers into the GPF

would be principally for the specific purpose of providing

increased protection and security to Indo-Guyanese. Such a

racial polarisation of function could, however, cause racial

cleavages within the GPF. The Indo-Guyanese members might be

inclined to perceive their function mainly as protectors of Indo-

Guyanese, while the Afro-Guyanese members might likewise be

inclined to perceive their function as protectors of Afro-

Guyanese.

The existence of the GPF as a unitary body could be

racially assailed with disastrous consequences for the national

welfare or society at large. In actuality, if the desire on the part

of segments of the Indo-Guyanese population to be protected

and served primarily by their `kith and kin’ were to be causally

related to the induction of a greater number of Indo-Guyanese

into the GPF, this might well be a preliminary step in the

direction of the institutionalising of segregation as a solution to

ethnic-political problems between Afro- and Indo-Guyanese in

general. This would surely be a retrograde step that could

fragment the State itself.

Instead, the GPF needs a fair and equitable recruitment

policy that will provide all with an equal opportunity to have their

fears, complaints and interests addressed free of the notion that

racial/ethnic considerations influence their resolution or

determination.

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Another submission sought to suggest that Indo-Guyanese

police officers should be enlisted and should be stationed in

predominantly Indo-Guyanese communities. The Commission

considered this suggestion in earnest and is of the opinion that

such a recommendation is fraught with danger.

On the practical level, if an Indo-Guyanese were to level an

allegation of criminality committed against him by an Afro-

Guyanese in a predominately Indian community served and

protected predominantly by Indo-Guyanese members of the GPF,

would the Afro-Guyanese suspect be comfortable with being

investigated by Indo-Guyanese members of the GPF assigned to

protect and serve that predominantly Indian community? It is

hardly likely. His or her discomfort may lie not so much in being

investigated by Indo-Guyanese members of the GPF, but in the

fact that those Indo-Guyanese members of the GPF have the

function and duty of protecting that predominantly Indian

community.

It is therefore difficult to accept the submission that the

desire for Indo-Guyanese communities to be protected by Indo-

Guyanese members of the GPF provides a valid or pragmatic

rationale for reconfiguring the GPF.

Assume that the GPF were to have an ethnic composition

of Afro- and Indo-Guyanese proportionate to their respective

demographic strengths. Assume again that there is public

disorder in which members of one such ethnic group are being

assaulted by members of the other ethnic group for no other

reason than their ethnic differences. Does the fact that the

victims are of a particular ethnicity justify assigning only a

contingent of that ethnicity to restore order? Does the fact that

the aggressors are of a particular ethnicity justify assigning a

contingent of that ethnicity? It is obvious that from either

perspective of victim or aggressor it would be wrong to exclude

members of either ethnic group from the contingent.

A policy of making lawful efforts to achieve some degree of

balance between Indo-Guyanese and Afro-Guyanese in the

membership of the GPF cannot be faulted in principle especially

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as these two largest ethnic components of the Guyanese

population have a history of rivalry for dominant political space.

But such a policy cannot be premised on a rationale which places

emphasis on the negatives of an Afro-Guyanese dominated GPF

while disregarding the same negatives for an Indo-Guyanese

dominated GPF. This may lead to ethnic implosion within the

GPF itself. Any rationale for achieving greater ethnic parity must

consist of positives for both Afro and Indo-Guyanese, and the

nation as a whole, rather than the mere reduction of the

negative effect on one ethnic group at the expense of other

ethnic groups.

The Commission, however, is of the view that the allaying

of ethnic security fears which stems from the predominance of

Afro-Guyanese presence in the GPF must be addressed.

Redressing the ethnic imbalance between the Indo-Guyanese

and Afro-Guyanese within the permissible legal parameters is a

necessary pre-condition to allaying such fears. It is obvious that,

if the fears stem from ethnic imbalance then logically such

imbalance which causes the fears must be redressed. If the

imbalance can be removed, however, the objective should not be

simply to allay Indo-Guyanese ethnic insecurity fears but to

ensure, in so doing, that no similar insecurity fears are caused to

the Afro-Guyanese community, thereby ensuring that such fears

are allayed on all sides.

It is the Commission’s view that this objective can be

achieved by a further policy of admixture and joint deployment

of both Afro- and Indo-Guyanese members of the GPF to

condition their minds to the goal of national rather than ethnic

security. Attitudinal change is extremely important and each

member of the GPF, regardless of his or her ethnicity, must be

imbued with the ethics of professionalism supported by a strong

sense of team spirit or esprit de corps that transcends racial

sentiments.

In furtherance of this objective, the Commission

recommends that both Afro-Guyanese and Indo-Guyanese be

admixed and deployed to face the challenges of criminality as

cohesive units of a cohesive national body. Inter-racial teamwork

must be fostered to engender inter-racial cohesiveness. As one

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Indo-Guyanese witness who testified before the Commission put

it, on entering a police station, he must not be made to feel that

he is entering an Afro-Guyanese preserve. Similarly, an Afro-

Guyanese, on entering a police station must not be made to feel

that he or she is entering an Indo-Guyanese preserve.

A national personality must be presented and be made to

function nationally. In reality, other ethnic groups will rarely see

themselves reflected in the personnel when visiting a police

station but, if there is a focus on creating a truly national

personality and on serving all members of the nation equally,

even members of much smaller ethnic groups will benefit from a

greater sense of inclusion.

A policy of admixture and deployment of all the races,

where possible, to work jointly and cohesively will have the

benefit of portraying the image of the GPF as a truly national

institution rather than a one dimensional ethnic organisation.

Such a policy will itself reduce ethnic insecurity fears on all sides

of the societal racial divide and would have an internal deterrent

effect on any police officer tempted to engage in any form of

ethnic bias. Moreover, any Government will be afforded some

comfort in the knowledge that the Police Force, as the foremost

civilian enforcement arm of the State on which the security of

the State is largely dependent, is so ethnically composed as not

to pose any serious threat to governmental stability, even if the

Government has been elected on the basis of ethnic voting.

The implementation of a policy of joint ethnic deployment

and assignment necessarily requires an augmentation in the

membership of the GPF, principally with respect to Indo-

Guyanese. However, to avoid an imbalance in their favour which

can arouse ethnic insecurity fears, it appears that parity between

the Afro-Guyanese and Indo- Guyanese membership is the most

commendable `balance’ and the desirable goal. As far back as

1965, this was the recommendation of the ICJ Commission, and

we see no reason to alter this highly rational approach.

Incentives

This chapter has concentrated very much to date on issues

of parity as between Indo- and Afro-Guyanese in the GPF.

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However, the Commission was aware of the importance of

providing equal opportunities and ensuring adequate

representation for all Guyanese. Therefore, we believe that

efforts to achieve some level of adequate representation for all

the ethnic groups of Guyana in the Police Force must be

informed by a policy of recruitment designed and adapted to

attract under-represented groups, but which at the same time

does not discriminate against any specific ethnic group. Since

admission into the GPF is best achieved on the overriding

principle of non-discriminatory competitive merit, it must be

recognised that complete parity of representation between the

two major ethnic groups may well prove to be an elusive

objective. This objective may well nigh be unachievable simply

because merit may prove to be an unruly horse which resists

being steered in a particular direction. It is for this reason that,

while the idea of ethnic balancing cannot generally be opposed

on principle, there has been a marked reluctance to embrace a

`quota’ system for such balancing. The objective must therefore

be to attain a fair and acceptable level of ethnic representation

based on the ethnic diversity of the nation.

Evidence has been adduced before the Commission that

the ethnic composition of the GPF may be in large part driven by

demographic factors – for example, the differing traditions of

places of residence and occupations of Indo-, Afro- and other

Guyanese. The view was advanced that the Force must be able

to offer competitive salaries and non-salaried benefits which are

sufficient to induce Indo-Guyanese to join the GPF and, while this

may not be the sole reason for the upgrading of emoluments,

this submission ought to be accorded serious consideration

(depending of course on the availability of resources) in view of

the impact it may have on the prospective stability of the

country.

Some presenters have sought to give the impression that

Indo-Guyanese are intrinsically not suited to the rigorous training

schedule but statistics gleaned from the records of the British

Guiana Special Services Unit in 1964-65 do not support this

misguided notion and an Assistant Commissioner of Police in his

evidence made it quite clear that they are able to cope with the

physical requirements of training.

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Anecdotal evidence has also been received by the

Commission of instances of Indo-Guyanese recruits being unduly

pressured by their superiors and trainers to ensure that they

leave the GPF and this may well have led, in the past at least, to

a higher attrition rate. If true, such superiors and trainers do

untold damage to the image of the GPF and it may be necessary

to apply to those superiors and trainers section 39 of the Act

which provides:

Any person who causes or attempts to cause or does any act calculated to cause disaffection amongst the members of the Force, or induces or attempts to induce or does any act calculated to induce any member of the Force to withhold his service or commit a breach of discipline, shall be liable on summary conviction to a fine of twenty-six thousand dollars and to imprisonment for six months, and in either case, if a member of the Force, shall forfeit all pension rights and be disqualified from being a member of the Force. (emphasis added)

The rules and practices which obtain in the GPF must be

adapted to cater for the needs of an ethnically diverse workforce.

It has been suggested, for example, that Indo-Guyanese tend to

marry and develop family ties early and, therefore, do not like to

be far away from their homes for extended periods. Indeed, it is

unlikely that any Guyanese police recruits may wish to be

stationed for long periods away from their families, and the

Commission believes that no-one should be unnecessarily

assigned to police stations which are not within reasonable reach

of their family homes. Where this is not possible, and it is

necessary to assign police officers to stations far away from their

family homes, these assignments should not be for too extended

a period. It is also important to provide improved family

accommodation and family-friendly arrangements to facilitate

such postings.

Other issues raised concerned the need to cater for the

dietary practices of Indo-Guyanese. In order to attract more

Indo-Guyanese, the GPF must be able to provide traditional Indo-

Guyanese meals in a manner which ensures their non-

contamination by pork or beef. People also have diverse religious

beliefs and, while the GDF makes provision for the services of a

full- time Chaplain, catering to the needs of its Christian

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members, a Moulvi and Pandit should be officially appointed to

cater for the spiritual needs of Muslims and Hindus. Time off

should be given for religious worship in so far as this is possible.

Whatever non-exclusionary innovative practices are

implemented which may lead to more Indo-Guyanese into the

GPF must be made public for the information of the Indian

community, in particular. There can be little response without

publication.

The Commission wishes to point out that the submission

made by some that a recruitment policy of 75% Indo-Guyanese

to 25% Afro-Guyanese for a period of 5 years (or for any greater

or lesser period) in order to achieve an ethnic balance between

Afro-Guyanese and Indo- Guyanese is constitutionally offensive,

and pregnant with emotive repercussions. Such a

recommendation which was made by the International

Commission of Jurists (ICJ) in 1965 and is referred to in the terms

of reference of this Commission is now repugnant to article 149

(4) of the Constitution in that it is obviously ethnically

discriminatory. However, the Commission has also given serious

consideration to an alternative process of implementation which

would be predicated upon a provision akin to article 149 (6),

designed to augment the participatory opportunities of the

Amerindian Community, but the Commission has concluded that

prudence dictates that this procedure should be considered only

as a last resort.

Similarly, any need to achieve a fair and acceptable level

of ethnic balance in the upper ranks of the Force cannot be

satisfied by an ethnically discriminatory policy, which effectively

disadvantages and excludes on the basis of ethnicity.

The Commission recognises and appreciates the practical

difficulties attendant on legitimate non-discriminatory efforts to

achieve even a fair and acceptable level of parity in the Force.

The Commission foresees the real possibility that, despite the

best of non-coercive measures taken, the desirable objective

may still prove illusory — at least in the short term.

Nevertheless, the Commission does not see conscription of Indo-

Guyanese into the GPF as an option. Such conscription would

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violate the constitutional provision against forced labour (see

article 140 of the Constitution) and ethnic discrimination (article

149). Nor does the Commission see it as constitutionally

permissible to conscript Guyanese of all ethnicities into the GPF

since, while not infringing article 149; any such action would still

infringe article 140 (forced labour).

In any event, it would not be fair to implement a coercive

system of national conscription because Indo-Guyanese entertain

ethnic insecurity fears but are disinclined to voluntarily offer their

services as members of the GPF. Among the non-discriminatory

measures undertaken in the recent past has been the

establishment of training schools in the two other counties i.e.,

Berbice and Essequibo, and the recruitment ratio is indicating a

dynamic which makes for a marked reduction in the ethnic

disparity.

Despite the legal and other constraints, therefore, the

Commission is of the view that, with these permissible inclusive

measures and positive inducements, a movement to the

objective of ethnic balance between the Afro-Guyanese and Indo-

Guyanese membership of the GPF is probable. The Commission,

however, wishes to caution that the attainment of ethnic balance

will only be skin deep without further effective efforts to meld or

gel the entire membership of the GPF into a composite unit to

remove any attendant or resultant internal ethnic division which

will in turn impact on the level of protection and service meted

out to the public.

The Commission recognises that social engineering, short

of unlawful discrimination, is not only desirable but is justifiable if

the ends result in a more stable society. The recent period has

seen brazen attacks on the GPF resulting in unprecedented

fatalities, leading to a serious reduction in applications to join the

Force and many members leaving. Figures supplied by the Force

suggest that, since 2000, proportionately more Indo-Guyanese

are being recruited than previously. It is important for the Force

to maintain this trend and to attract as wide a pool as possible of

potential recruits. The quality of those recruits also needs to be

improved since, without this, there could be a tendency for the

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Force to sacrifice quality for quantity to maintain its human

resource capacity.

The Constitution (particularly article 149) is predicated

upon the existence of equality among the various ethnic

components of the society (except the Amerindians) and that no

ethnic group is less able to qualify and occupy the constitutional

space accorded them on a competitive basis. The fact that Indo-

Guyanese as a group are under-represented in the GPF does not

mean that they are less able or unequal to Afro-Guyanese who

predominate. Equally, the fact that Afro-Guyanese may be

disproportionately under-represented in the area of business

does not mean that they are less able or unequal to their Indo-

Guyanese counterparts.

The ethnic under-representation of Indo-Guyanese in the

GPF is reflective of the historical nuances, cultural cum religious

difficulties and, more generally, the societal patterns which

developed over the last 40 years. Therefore, the ethnic under-

representation of Indo-Guyanese in the GPF cannot attract a

remedy based on ethnic discrimination in favour of Indo-

Guyanese or any other ethnic group (except, perhaps,

Amerindians). It is the Commission’s view that ethnic under-

representation not caused by, or reflective of, social inequality or

social under-privilege can best be dealt with at this juncture of

our socio-ethnic history by way of social engineering, and not by

ethnic discrimination — even to a limited extent.

The Commission understands that one of the reasons for

its establishment was the notable under-representation of the

largest ethnic group i.e., Indo-Guyanese. Accordingly, this

chapter has focused almost exclusively on the issue of greater

ethnic balance between Indo- and Afro-Guyanese. It is, however,

aware that other groups in society are also under-represented

(e.g., Amerindians and women) and we believe that many of the

proposals made with regard to Indo- and Afro-Guyanese, will

have significance for others as well.

Recommendations

With regard to “ethnic balance” in the GPF the Commission

recommends as follows:

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38. It should be an aim to achieve a Force representative of

the ethnic diversity of the nation without employing a

quota system, which would be constitutionally offensive.

39. A forensic audit should be carried out of current trends

of recruitment and the results and subsequent reviews

should be placed in the public domain.

40. Ethnically diverse recruitment and promotion panels

should be employed as openly and extensively as

possible.

41. A policy, distinct from that for recruitment, should be

employed to provide inducements, such as better

conditions of work, for all ethnic groups to remain in the

GPF.

42. Inter-racial teamwork should be fostered to engender

inter-racial cohesiveness.

43. The rules and practices of the GPF should be adapted to

cater for the needs of an ethnically-diverse workforce,

especially as regards religious beliefs, meals and racial

equality.

44. The membership of the GPF should be augmented,

especially as regards Indo-Guyanese, without

introducing conscription.

45. Effective disciplinary measures must be introduced to

counter any racial or sexual harassment. Additionally, a

commitment should be secured from senior ranks for a

change of attitude in dealing with lower ranks.

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Section 5: Community Policing

In this section, the Commission examines “ways in

which increased public support and confidence can be

achieved. For example, examine ways of improving (a)

police/community relations; …and (c) the establishment

and functioning of Community Policing Groups.”

The concept of policing communities by communities has

no statutory basis in Guyanese law, but the concept of policing

communities by the police forms part of the general statutory

functions of the GPF and belongs to the realm of public law.

Private Rights

In or about 1986, communities began to take steps to

safeguard and protect their members in response to increased

criminal activities and this has given birth to the formation of a

number of community policing groups (CPG) made up of

volunteer members of their respective communities. These

groups have resorted to the private law remedy of self-help. No

doubt, the perception of the need for self-security and self-

protection is a direct result of failure of the GPF to respond with

some satisfactory degree of expedition, resoluteness and

effectiveness to the increase in crime.

Given the inadequate resources of the GPF, active

encouragement and support are given by the Government and

GPF for the formation of community policing groups. However,

since the activities of such community policing groups are

necessarily limited to the private law remedy of self-help, it has

become necessary for a collaborative approach to be used to

give some legitimacy to this otherwise private endeavour. The

participants are more accurately described as volunteer security

personnel from within their respective communities and a

doubtful form of legitimacy is conferred by the presence of an

on-duty member of the GPF within their group when patrols are

undertaken, or where rural constables are detailed to patrol with

the CPG.

Promoters of community policing groups ought not to

induce in the minds of members of such groups the erroneous

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belief that, because of the nature of their function, they have and

can exercise police powers without being members of GPF. It is

not the function, but membership of the GPF, which can clothe

them with police statutory power. Such a misconception can

induce conduct which is not merely outside the powers of private

citizens and, therefore, unauthorised by law but which may itself

provoke resentment and breaches of the peace. It simply poses

a danger to the public welfare to have untrained and

unauthorised persons purporting to exercise police powers under

the guise of performing police functions. If there exists the

problem of curbing excesses in the exercise of statutory police

power by trained members of the GPF, it is likely that there will

be an even greater problem by having untrained persons

purporting to exercise police powers.

In view of the present numerical under-strength of the GPF

coupled with inadequate means of communication,

transportation and other equipment, the Commission recognizes

the temptation to encourage communities to fill the vacuum and

make efforts to safeguard their communities against criminal

predators. However, “policing” by community policing groups is

neither a proper nor reliable substitute for policing by members

of the GPF. Not only do members of such groups lack the

statutory powers to enable them to more effectively perform this

function but, since they are under no legal duty to protect even

their own communities, there can be no minimum guarantee of

continuation of such protective service. Indeed, their very

existence as groups is not a matter of institutional certainty. It

would be foolhardy, therefore, to entrust as a matter of policy

the security of communities to community policing groups. The

fact that communities have decided to address their own

communal security concerns, by way of the private right and

remedy of self-help, should provide no inducement to the GPF to

ignore or abdicate its public law responsibility to protect and

serve all communities. It has been said that policing is too

important a function to leave to the Police alone. It may also be

said that policing is too important a function to be left to the

communities.

Constabulary

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It is obvious that, as many presenters on community

policing have pointed out to the Commission, there is need to

institutionalise community policing groups within some

legislative framework. While the Commission endorses this

recommendation, the Commission does not view it as necessary

or sensible to create an elaborate new institutional framework for

community policing. The Commission is of the view that the

existing Rural Constabulary (with the appropriate emendation to

its nomenclature), which is presently under-utilised, should be

used to accommodate and absorb persons who do not wish to

become full-time members of the GPF but who are nevertheless

willing to perform police functions for the limited purpose of

serving, protecting and safeguarding their own communities.

The structure and purpose of this renamed Constabulary

seem tailor-made to accommodate persons who do not wish to

be full-time regular members of the GPF but wish to perform

police functions part-time within their specific communities or

residential localities. Section 2 of the Act defines “member of

the Force” as including rural constables.

Under section 15 of the Act:

Every member of the Force so long as he continues to be a member thereof, shall have all rights, powers and authorities, privileges and immunities and shall be liable to such duties, responsibilities, immunities and penalties as any member of the Force duly appointed now has or is subject or liable to, either by the common law or by virtue of any law which now is or may be hereinafter in force in Guyana.

Section 90 (1) further provides:

Every rural constable-

(a) shall have all the powers and shall be entitled to all the privileges and immunities conferred upon any constable by any law or Act for the time being in force.

Members of the Rural Constabulary are members of the

GPF and have the same powers and authorities as regular

members of the GPF. The Commission has noted that many

members of community policing groups have already been sworn

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in as members of the Rural Constabulary. The beneficial effect of

having members of community policing groups brought within

the ranks of this Constabulary is not merely to confer them with

statutory power and authority so as to enable them to more

effectively perform community policing functions, but also to

bring them within the administrative control of the officers of the

GPF who serve in their communities.

Section 86 of the Act provides:

Every officer of the Force shall, within the limits of the place in which he exercises authority in matters relating to the Force, have the control and command of the Rural Constabulary and perform the duties in relation thereto directed by the Commissioner or as prescribed by the regulations.


Every Rural Constable-(a) …(b) …(c) shall obey all lawful orders given to

him by a magistrate or a justice of peace, or by a superior officer, inspector or subordinate officer.

Members of community policing groups are essentially

volunteers. Those members, who have been or are sworn as

members of the Rural Constabulary, fall under the control and

command of officers of the GPF who serve in their respective

communities or respective localities. They must obey the lawful

commands of such officers and the orders of every magistrate,

justice of peace, inspector or subordinate officer in those

communities.

If this proposal is accepted, and it is the objective of the

Commissioner of Police or the Minister to numerically strengthen

the Rural Constabulary to enable community policing to be

performed by the Rural Constabulary which falls within the

command structure of the GPF, this should eventually eliminate

the danger of civilian vigilantism by motley groups of

uncontrolled and self-interested but concerned citizens. In order

to achieve this, it is important that the membership of these

groups and other interested members of the communities be

carefully screened for appointment to the Rural Constabulary

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and that a proper system of training and instruction, relevant to

community policing and other rural constabulary duties, be

implemented for those selected and appointed.

It is instructive to note that mere empowerment with police

powers has the grave danger of substituting civilian vigilantism

with police vigilantism. Moreover, it is imperative that the

performance of community policing functions be systematically

and strictly supervised and monitored. The Commission received

evidence of allegations of physical and verbal abuse by

community policing groups. Such allegations speak to the need

for the training, instruction, supervision and monitoring referred

to above.

The Commission has been made aware that persons are

motivated to join community-policing groups so as to provide

themselves with a `good reason’ for possessing a firearm by

applying for firearm licences. The prescribed authority for the

grant of firearm licences should be alive to such improper

motivations. In any event, the Commission does not believe that

the fact that an applicant for such licence is a member of a

policing group, or even a member of the Rural Constabulary, is a

proper and sufficient basis for the grant of a firearm licence. If

such membership were a `good reason’ within the meaning of

section 18 of the Firearms Act, every member of the GPF, a

fortiorari, would have a `good reason’ for the grant of a personal

firearm licence. But those members of the Rural Constabulary,

who are licensed firearm holders, may be allowed by the officer-

in-charge of the district police station to use their firearms while

on community policing duties — with the proviso that a record be

made of such firearms and their holders whenever such firearms

are allowed to be so used.

The Commission is of the view that community policing is

in essence a public law function of the GPF and not a private law

function. Although everyone has a private right to employ the

private law remedy of self-help in protection of his or her

community, the private law remedy of self-help does not extend

to enforcing the public laws relating to criminal conduct but is

restricted and circumscribed by the private law interests of self-

preservation and self-defence. Members of the GPF have the

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public law function of protecting and safeguarding all the

communities and such function is not motivated by narrow self-

interest. As such, they are statutorily conferred with enabling

public law powers to stop, search, arrest or detain which are not

available to civilians.

For this reason, the GPF should take the opportunity of

inducting into the Rural Constabulary those members of

community policing groups who are not desirous of joining the

GPF on a full-time basis but who have nevertheless

demonstrated a sufficient degree of public responsibility and

intelligence as to be receptive to training, instruction and

discipline to enable them to perform community policing

functions. Those who are not fit to be so inducted should be

encouraged to act merely as the èyes and ears’ and not the

`coercive arm’ of their communities.

Recommendations

With regard to “community policing” in the GPF the


46. The membership of these groups and other interested

members of the communities should be carefully

screened for induction into the Rural Constabulary and a

proper system of training and instruction relevant to

community policing and other rural constabulary duties

should be implemented for those selected and

appointed. Those who are not fit to be inducted into the

Rural Constabulary should be encouraged to act merely

as the èyes and ears’ and not the `coercive arm’ of

their communities.

47. There is need to legitimise the practice of community

policing within some legislative framework, so as to

ensure that community-policing functions are

institutionalised, strictly supervised and monitored.

48. The criteria for the grant of firearm licences should not

hinge on membership of a community policing group.

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49. The Officers-in-Charge of police stations should maintain

records of licensed firearm holders and their firearms,

whenever they allow them to be used on community-

policing duty.

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Section 6:Extra-Judicial Killings

In this section the Commission examines “extra-

judicial killings, summary executions and the involvement

of sections of the GPF in illegal activities.”

The term ‘extra-judicial killings’ can be problematic in its

use. In its literal sense, such a term would seem to have no

relevance in a country that does not have the death penalty.

However, the term is normally used to describe killings by law

enforcement agencies whether or not the country has the death

penalty. Killings by law enforcement agencies may be either

lawful or unlawful and, there is a popular tendency of using the

term ‘extra-judicial killings’ even if such killings are plainly

lawful. Therefore, the term ‘extra-judicial killings’ is used to refer

to killings by law enforcement agencies, which may or may not

be unlawful whether or not the country has the death penalty.

Right to Life

The right to life is the most primary of all fundamental

human rights. The Commission received sufficient testimony to

raise serious concern about the alleged violations of this most

basic right, in Guyana, in recent years. Indeed, it is the unusual

level of killing by the police that in part led very directly to the

establishment of this Commission. It is of grave concern to the

people of Guyana that in the period January 2002 to the end of

June 2003, the GPF has lost more police officers than in its

previous 164- year existence. Twenty-one police officers have

been killed following the infamous jail- break of 23rd February

2002. Regardless of the particular circumstances, these deaths

were generally seen as calculated attacks on the very fabric of

law enforcement. Individuals expected by society to protect and

serve it were killed in the line of duty.

Of particular concern to many witnesses was the fact that

police were in turn actively engaged in killing others. The level

of fatal shootings carried out by the police is extremely high.

According to figures supplied to the Commission, sixty-two

people were killed by the police or in joint forces operations

between early 2002 and the end of June 2003. Without seeking

to justify this spate of killings the Commission is not unmindful of

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the great upsurge in violent crimes in which high-powered

weapons were used.

Guyana has the death penalty. However, even in countries

that have abolished the death penalty, the right to life has

always been recognised as not being absolute since it can be

overridden or superseded by the rights of others. The common

law has always recognised the right of one person to deprive

another of his life in lawful self-defence or defence of property.

Members of the GPF are no less entitled to so do in self-defence

or in defence of another or of property, to effect lawful arrests, to

prevent escape from lawful custody, to maintain public order or

to prevent the commission of a crime – provided that the use of

deadly force is not unreasonable. It is not the killing per se,

whether by a private citizen or a member of the GPF, but the

circumstances in which it has occurred which determine whether

or not the killing is lawful. Our Constitution itself, while

recognizing the primacy of the right to life, speaks to the nature

of that right not being absolute.

Article 138 (1) provides:

No person shall be deprived of his life intentionally save in execution of a sentence of a court in respect of an offence under the law of Guyana of which he has been convicted.

while article 138 (2) provides:

Without prejudice to any liability for a contravention of any other law with respect to the use of force in such cases as are hereinafter mentioned, a person shall not be regarded as having been deprived of his life in contravention of this article if he dies as a result of the use of force to such extent as is reasonably justifiable in the circumstances of the case —

(a) for the defence of any person from violence or for the defence of property;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) for the purpose of suppressing a riot, insurrection or mutiny; or

(d) In order to prevent the commission by that person of a criminal offence...

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For the purposes outlined in article 138 (2) (a), (b), (c) or (d),

where a killing has resulted from the use of force, such killing is

not in violation of the right to life under article 138 (1) if the

degree of force is reasonably justifiable in the circumstances of

the case.

The fact that a citizen or a member of the GPF has the

lawful authority to apprehend, to prevent an escape from lawful

custody or to maintain law and order does not translate into a

right to use deadly force. However, circumstances may exist or

arise which may render even the use of deadly force justifiable.

One issue which came to the attention of the Commission

was the fact that there may well be some misperception that

arises in relation to the legal use of deadly force. In the context

of Guyana, where the old common law distinction between

felonies and misdemeanours still obtains and where the old

common law doctrine of implied or constructive malice still has

application, the distinction between reasonable force and deadly

force can be very illusory unless it is clearly understood that the

killing of a member of the GPF in the course of resisting a lawful

arrest by him for a felonious crime constitutes murder in the

resistor despite the absence of an intention to cause even

serious bodily harm on the part of the resistor.

In Archbold (Pleading, Evidence and Practice in Criminal

Law) 36th Edition p. 937, the learned author stated in para. 2522

(a):

If an innocent person is charged with a felony, and an attempt is made to arrest him for it without warrant, and he resists and kills the party attempting to arrest him; if the party attempting to arrest were a constable, the killing would be murder; if a private person, manslaughter; because the constable has authority by law to arrest in such a case but a private person has not. And it is the same in all cases where the arrest is made or attempted to be made upon a reasonable suspicion of felony.

The logical corollary of the law is that, when a person against

whom there exists an allegation of the commission of a felony

resists an attempted lawful apprehension for that felony by a

member of the GPF, he may not be simply resisting lawful

apprehension for that felony but may be doing a dangerous act

which has the potentiality of resulting in the commission of

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murder rather than manslaughter despite the absence of any

subjective or objective intention to cause serious bodily harm to

the member of the GPF. Since the common law views any such

dangerous act of resistance as an act committed in the course of

a forcible felony, and since the member of the GPF is acting

under legal authority or duty to effect the arrest, the common

law renders justifiable the use of deadly force by the member of

the GPF in order to defend himself against such a dangerous act

of resistance. Nevertheless, in so doing the police ought to be

guided from their training by the cardinal doctrine that such

force must be the minimum necessary to achieve the objective.

The learned author of Archbold 36th Edition stated in para.

2527 (1) at p. 940:

Where an officer is resisted in the legal execution of his duty, he may repel force with force; and if in so doing, he kills the party resisting him, it is justifiable homicide; and this in civil as well as criminal proceedings...And the same applies to persons acting in aid of such officer. Thus, if a peace officer has a legal warrant against B for felony, or if B stands indicted for felony, if B resists and in the struggle is killed, the killing is justifiable... So if a private person attempts to arrest one who commits a felony in his presence or interferes to suppress an affray, and is resisted and kills the person, this is also justifiable homicide…And this is so not merely on the principle of self-defence (for the officer or private person is not bound to retreat...) but upon that principle and the necessity of executing that duty the law has imposed upon him jointly… Still there must be apparent necessity for the killing; for if the officer were to kill after the resistance had ceased ...or if there were no reasonable necessity for the violence used on the part of the officer, the killing would be manslaughter at the least. Also, in order to justify an officer or private person in these cases, it is necessary that they should, at the time, be in the act of legally executing a duty imposed upon them by law, and in such circumstances that if the officer or private person were killed prior to the Homicide Act 1957 it would be murder.

Reasonable Force

The law which presently obtains in Guyana is that which

obtained in England prior to the passing of the English Homicide

Act 1957. The above dicta illustrate the extent to which the

common law frowns upon felonious crimes and to which it

provides protection to persons acting with lawful authority or in

the execution of a legal duty to suppress such crimes. The

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resistor to an arrest is constructively invested with at least an

intention to cause serious bodily harm whenever resistance is

done with dangerous force and the arresting member of the GPF

becomes entitled to use reasonable force to prevent serious

bodily harm to himself.

The question of whether the degree of force used is

reasonable pales into insignificance and the issue becomes

simply whether the resistance reasonably poses harm to the

arresting member of the GPF. If it does, the use of even deadly

force is justifiable on the basis that it is reasonable to use such

force to prevent the infliction of serious bodily harm to the lawful

arrestor. To this extent, the use of deadly force is then equated

with reasonable or even minimum force, which is the

underpinning of the principle by which members of the GPF are

guided.

The extent to which the common law operates in

protection of persons acting in lawful execution of their duty or

with lawful authority to effect arrest for a felonious crime is

further illustrated by the following passage in para. 2528 (3) of

Archbold’s 36th Edition at p. 941:

When an officer or private person having legal authority to apprehend a man, attempts to do so, and the man, instead of resisting, flees or resists and then flees, and is killed by the officer or private person in the pursuit: if the offence with which the man was charged were a treason or felony, or a dangerous wounding or he could not otherwise be apprehended, the homicide is justifiable.

Thus, the common law therefore permits members of the

GPF to use deadly force to prevent the escape by flight of a

person who is accused of, or reasonably suspected of, the

commission of a felony if such force is the only means of

preventing his escape.

The common law therefore permits members of the GPF to

use deadly force in dealing with dangerous resistance to, or flight

from, apprehension for felonies which, were the offences not

felonies, the degree of force may not be reasonably justifiable.

Article 138 (2) (b) of the Constitution draws no distinction

between felonies and other offences in relation to lawful arrests

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or the prevention of escape of lawfully detained persons.

However, the common law does make such a distinction, which is

neither expressly nor impliedly inconsistent with article 138 (2)

(b), and such a distinction is of great significance in determining

whether the use of deadly force is reasonably justifiable in

effecting lawful arrests or preventing escapes of persons accused

or reasonably suspected of commission of felonies. In effect,

despite article 138 (2) (b), the common law lays down that the

use of deadly force is in fact reasonably justifiable where there is

dangerous resistance to lawful arrests for felonies or the escape

of persons accused or reasonably suspected of the commission

of felonies cannot be prevented except by the use of deadly

force.

The Commission has received evidence that there is a

perception that members of the GPF are allowed to commit

extra-judicial killings with impunity. Such a perception seems to

have resulted from the fact that members of the GPF are not

often the subjects of criminal charges before the Courts for

‘extra-judicial killings’ or the fact that the Office of the DPP has

sometimes intervened to terminate privately instituted criminal

proceedings for such acts in favour of inquests. The Commission

has seen it fit to highlight with some degree of extensiveness the

application of the felony-murder rule since the application of this

rule may not be fully understood and may be of explanatory

relevance to the decisions of the prosecutorial agencies. This

pivotal rule has always been and still is part of the criminal law of

Guyana. The Commission has been led to conclude that

perception-driven rather than knowledge-based conclusions by

some sections of the Public tend to criminalise, perhaps

unjustifiably, these ‘extra-judicial killings’. The Commission has

been at pains throughout its work to ensure that its

recommendations address the real underlying problems, and it

seems to us that at least one of the causes of the perception of

police impunity rests on this legal distinction between felonies

and misdemeanours, and therefore needs to be addressed.

No presenter, including the Office of the DPP, the GBA

(Guyana Bar Association) or the GHRA, has made any

recommendation for the abolition of the felony-murder rule.

However, the Commission has seen it fit to raise this issue with

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the acting DPP and the President of the GBA. It is interesting to

note that neither has expressed the view that the felony-murder

rule should be abolished at this time. The view was expressed

that the hands of the prosecution and the GPF should not be

weakened at this time when there is an upsurge of felonies of

violence. Accordingly, the Commission does not feel able to

recommend simply that the felony-murder rule be dropped,

given that it will have implications beyond the problem of police

killings.

The Commission has received a large body of evidence in

which the GPF has been accused of summary execution of

suspects who have not resisted arrest or have surrendered. It

would be unlawful for a member of the GPF to use deadly force in

the course of arresting even a felon if the felon has not resisted

arrest, has ceased to do so, or has surrendered. It would be

likewise if the felon resists lawful arrest without posing any

danger of physical harm to the arrestor.

One must distinguish between mere resistance and

resistance which poses the danger of physical harm. If the

resistance does not pose any danger of physical harm, there can

be no constructive or implied malice under the felony-murder

rule (i.e. an intent to kill or cause serious bodily harm), and the

use of deadly force is unjustifiable. Should the allegations be

true, the Commission is driven to emphasise that members of

the Police Force cannot lawfully use deadly force in the course of

arresting felons or suspected felons who have not resisted or

have surrendered, or even on those who have resisted without

posing any danger of physical harm to the arrestor.

The view has been expressed that the difficulties of

obtaining convictions because of reluctant witnesses and

perceived weaknesses both in prosecutorial processes and the

judicial system may be the rationale for members of the GPF

summarily executing persons known or even perceived to be

guilty of serious violent felonies. Sections of the society may

have added to this impetus by approving of such Police vigilante

justice. A citizen’s right to life cannot be lost at the instance of

unlawful vigilante justice even with societal approval.

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One presenter forcefully and vociferously submitted that

those who take up arms against the forces of law and order

should not be allowed to call in aid constitutional protection.

Such a view is representative of a fundamentally flawed

perception that, because the right to life is not absolute, it can

be forfeited or surrendered. As a public law right, the right to life

cannot be privately surrendered, though it can be superseded by

the right to life of others or the public interest. The right to kill in

self-defence is premised not on the surrender of the right to life

by an attacker but by the supersession of that right by the

absolute right of the defender to act reasonably in his own self-

preservation. The death penalty also is premised on the

supersession of public interest over the right to life.

The actions of members of the GPF must be premised on

and informed by their own right to act reasonably in self-defence,

preferably by the use of minimum necessary force, in the course

of their public duty and not on the false notion that certain types

of criminals have forfeited their right to life. It is crucially

important that members of the GPF appreciate that criminals do

not surrender or forfeit their human rights by their actions,

however heinous. Failure to appreciate this concept on the part

of members of the GPF, and indeed on the part of society, fuels

vigilante justice.

The fact that society often expresses satisfaction and even

happiness when members of the GPF kill suspected criminals,

whether in circumstances of justification or not, indicates that

Guyana has moved perilously close to accepting vigilante justice

as a solution to its crime problems. This does not augur well for

its social and institutional health since it represents a no-

confidence vote in the overall legal system of criminal law

enforcement. Therefore, urgent attention should be given to

effecting improvements in the entire system of criminal law

enforcement- the police, prosecution agencies and the Judiciary.

This holistic approach is recommended since the remedy lies not

in tinkering with the symptoms but in rooting out the causes.

Use of Force

It is important to distinguish between the use of force

which was intended to cause death and the use of force, which

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was not intended to cause death. Article 138 (1) is concerned

with an intentional killing which is reasonably justifiable. Article

138(2) is concerned with the use of force which causes death

whether or not death was an intended consequence but which

was reasonably justifiable in the particular circumstances.

Article 138 (1) would be violated if there is an intentional

killing of a wanted man without any intention of arresting him or

of bringing him to face the court processes. This would occur

where a member of the GPF intentionally kills a wanted man

without any intention of arresting him to face the court

processes. However, article 138 (1) is not violated where the

intentional killing is reasonably justifiable or where there is no

intention to kill. The Constitution is silent on the circumstances

of killing where there is no intention to kill but the degree of

force used is not reasonably justifiable. However, the common

law is not; it provides for conviction for manslaughter. Cases of

summary execution are clearly confined to article 138(1) i.e.,

where there is an intentional killing without reasonable

justification.

While the view has been expressed that the GPF must be

sufficiently equipped with effective firepower to deal with the

military-type arms currently being used by criminal elements,

presenters have expressed concern about arming members of

the GPF with firearms that they are not sufficiently trained or

sufficiently responsible to use. The mere fact that a member of

the GPF is allowed the use of a firearm for the performance of his

duties should carry with it the presumption that (1) he is

permitted to use it in the proper execution of his duties (2) he is

sufficiently trained to use the firearm and (3) he is sufficiently

responsible to exercise a proper discretion as to when he can

resort to the use of the firearm. It is doubtful whether members

of the public can safely rely on the third presumption. The

quality of personnel who are allowed to be equipped with

firearms for the performance of their duties leaves much to be

desired. It has already been mentioned that quality seems to

have been sacrificed at the altar of quantity and the ranks who

are usually assigned frontline duties which have the potential for

danger seem to be those junior ranks to whom firearms are

thoughtlessly issued.

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The Commission feels impelled to recommend that not

only should ranks be trained and properly instructed as to the

circumstances in which the use of the firearm can be resorted to

but that, despite such training, only those who have clearly

demonstrated a requisite degree of responsibility should be

allowed to carry firearms. Too often, junior ranks who have been

issued with firearms seem to view the possession of a firearm as

a privilege and source of power rather than the conferment of an

onerous responsibility. On occasion, where it is considered

necessary to equip junior ranks with firearms for frontline duties

and the responsibility element is doubtful in such ranks, they

should be under the control of a mature, responsible and

experienced supervising rank. This would no doubt occur when

ranks are required to do patrol duties in dangerous localities.

The Commission is of the view that, with the current

international emphasis on greater respect for human rights input

in policing operations, it will eventually become necessary to

review the felony-murder rule whenever the social conditions

seem conducive to such a legal development. The consequence

will be that the latitude of the police to employ deadly force will

be severely curtailed. The Commission recommends that

immediate steps be taken to re-orient the attitude of the GPF in

the employment of deadly force in anticipation of such abolition.

The Commission has received no recommendation that this rule

should be immediately abolished but foresees that Guyana

cannot for much longer have an important aspect of its criminal

law hinging on a fictional intent which renders the primary right

to life less absolute especially as the death penalty has been

held to be constitutional.

In addition to better training for police officers, the

Commission has made a number of proposals elsewhere in its

report that should have an impact on the dramatic level of

killings by the police, for instance:

To establish a dedicated or distinctly identifiable Coroner’s

Court to reduce the backlog on inquests and inquiries.

To provide the Coroners with independent investigative

resources.

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To make it obligatory to hold an inquest in all cases where

police officers were involved in a person’s death.

To ensure greater independence in the arrangements for

investigating complaints against the police.

To introduce clearer terms of reference and lines of

command for any specialist units likely to be involved in

confrontations with armed and dangerous criminals.

Indeed many witnesses have indicated that the problems

underlying the high level of killings by police can be laid at the

door of poor recruitment standards, weak investigative skills and

expertise, corruption and/or failings in the wider criminal justice

system and these also have been addressed elsewhere in this

report.

It is to be hoped that the combination of all these changes

will make a dramatic impact on this scourge of questionable

killings by police. It is vital that crime prevention and thorough,

professional investigation become the bedrock of future policing

in Guyana. Killing supposed criminals is at best a short-sighted

approach to protecting society and the killing of innocent by-

standers debases human life. Over the longer term, the

indiscriminate and lethal use of force risks seriously undermining

the rule of law, and everyone’s security. People’s safety can only

be truly secured by having a law enforcement service, and a

criminal justice system, that work effectively in tandem to uphold

the rule of law.

Recommendations

With regard to “extra-judicial killings” by the GPF the


50. During training, emphasis must be placed on the fact

that the use of minimum necessary force is always to be

preferred, even in confrontations with armed and

dangerous criminals.

51. Appropriate instruction and training should be given to

policemen about the circumstances under which they

may resort to the use of the firearm.

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52. Permission to carry firearms should be restricted to GPF

members who clearly demonstrate a high degree of

responsibility. On occasion, where it is considered

necessary to equip junior ranks with firearms for

frontline duties and the responsibility element is

doubtful in such ranks, they should be under the control

of a mature, responsible and experienced supervising

rank.

53. In anticipation of the abolition of the felony-murder rule,

immediate steps should be taken to re-orient the

attitude of the GPF regarding the use of deadly force.

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Section 7:Accountability to Civilian Authority

In this section, the Commission examines, among

other things, the “relationship with, and responsibility to,

the civilian authorities” and “financial and public

accountability.”

The GPF is a statutory body charged with statutory

functions (section 3 of the Police Act). Under section 7 of the Act,

the Commissioner of Police is charged with the general command

and superintendence of the GPF. The rights and powers of all

members of the GPF derive from and are set out in the provisions

of the Act.

Jurisdiction

Since the GPF is a public body with public law functions

and its members are all public officers who exercise public law

powers in the performance of their public law duties, all acts and

omissions by members of the GPF are open to review by the High

Court at the instance of any aggrieved member of the public. The

GPF has not been established as a corporate body under the Act

and therefore the Commissioner as the person having the

command and superintendence of the GPF is the official whom

the High Court calls upon to answer for the acts or omissions of

members of the GPF.

The Commissioner of Police, at the instance of any

aggrieved member of the public, can be called upon to answer

for the misfeasance, malfeasance or non-feasance of the

statutory functions and duties of the GPF. The High Court usually

calls upon the Commissioner to show cause why any one or more

of the prerogative writs of Habeas Corpus, Certiorari, Prohibition

and Mandamus should not be issued against him on the basis of

prima facie evidence of unlawfulness, irrationality, procedural

irregularity or omission to do what ought to be done according to

law.

Of course, anyone can approach the High Court for

constitutional redress on an allegation that his or her

constitutional right has been contravened or is likely to be

contravened by the GPF or any of its members and the High

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Court has a wide discretionary power under article 153 of the

Constitution to provide appropriate redress. But, the invocation

of the High Court can be a costly exercise beyond the financial

affordability of many citizens. Nevertheless, the jurisdiction of

the High court is often seen and invoked as the most effective

and reliable avenue for making the GPF and its members account

for their actions or inactions.

There is a popular misconception that public criminal

proceedings can be instituted only by members of the GPF and

that the GPF is the sole arbiter as to whether or not public

criminal proceedings should be instituted. The Commission

wishes to point out that, under article 187 (1) of the Constitution,

the Director of Public Prosecutions has the power and authority:

(a) to institute and undertake criminal proceedings against any person before any court, other than a court-martial, in respect of any offence against the law of Guyana

(b) to take over and continue any such criminal proceedings that may have been instituted by any other person or authority; and

(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted by him or any other person or authority.

Thus, the DPP can institute and undertake criminal proceedings

against any person where the GPF has omitted to do so and can

discontinue criminal proceedings instituted by the GPF where the

DPP is of the opinion that the criminal proceedings should not

have been instituted. Moreover, the DPP can take over and

continue criminal proceedings instituted by the GPF where the

DPP sees it fit to do so e.g., if the DPP is of the opinion that it is

not in the public interest for the GPF to conduct the prosecution

against a member or members of the GPF. It should be noted

that only the DPP can take over and continue or discontinue

criminal proceedings without the leave of the court.


The powers conferred upon the Director by subparagraphs (b) and (c) of paragraph (1) shall be vested in him to the exclusion of any other person or authority.

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Provided that, where any other person or authority has instituted criminal proceedings, nothing in this paragraph shall prevent the withdrawal of those proceedings at the instance of that person or authority and with leave of the court.


In the exercise of the powers conferred upon him by this article the Director shall not be subject to the direction or control of any other person or authority.

The DPP is therefore functionally independent and has the

power to assume exclusive control over all criminal proceedings

to the extent of discontinuance without leave of the court. Such

constitutional power brings all prosecutions instituted by the GPF

within the over-arching power of the DPP. The GPF needs to be

mindful of its conventional obligation to give effect to the advice

by the DPP in light of the constitutional powers of the DPP.

Accountability

In an effort to ensure that improper or unlawful conduct on

the part of members of the GPF can be reported, investigated

and redressed, Parliament in 1989 established the Police

Complaints Authority (PCA) and conferred it with functional

independence. While the PCA is extrinsic to the GPF and is

functionally independent, the effectiveness of its functional

independence is necessarily limited by, and to the extent of, its

statutory functions.

In the crucial area of investigative supervision, the

Commission has recommended in section 8 of this Report that

the supervisory investigative power of the PCA should in time be

extended to other categories of serious offences e.g., corrupt

practices and that the Minister, in the performance of his duty

under section 6 of the PCA Act, should provide the PCA with

officers capable of assisting him in his supervisory investigative

function. Such officers should not be members of the GPF even

though former officers of the GPF can be appointed. The idea is

not only to extend or expand the statutory powers of the PCA but

to strengthen its institutional capabilities so that the GPF can be

made more effectively accountable to civilian authority for

alleged professional misconduct which has a serious criminal

element.

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The PCA must possess the institutional capability to

discharge its statutory functions. Otherwise, as a legal institution

which is crucial to the accountability of members of the GPF for

criminal and less serious kinds of misconduct to civilian

authority, it will remain weak and ineffectual and fail to inspire

public confidence.

It has been mentioned in section 10 of this Report that the

Coroners Act, Chapter 4:03, mandates any member of the GPF to

whose knowledge an unnatural death has been reported, to

report the same forthwith to the coroner and mandates the

coroner to investigate the circumstances in which such death has

occurred by way of an inquest or inquiry. Therefore, whenever

there is a killing of a person by anyone, including any member of

the GPF — whether lawfully or unlawfully — the coroner must

investigate by way of inquest or inquiry. Such investigation is

separate and distinct from any police investigations into the

killing. The GPF is therefore accountable to the coroner for all

cases of police killings whether any such killing is alleged to have

been committed lawfully or unlawfully.

It is instructive to note that, under section 15 of the Coroners Act:

(1) An inquest shall be held in every case of the death of any person confined in any prison, or in any lock-up or place of confinement for persons accused or convicted of having committed any offence except in cases where it is not practicable to obtain the services of a sufficient number of jurors.

(2) No person connected with the prison service or with the Police Force shall be summoned to serve as a juror on the inquest.

Thus, the GPF is accountable to the coroner in an

independent investigation by way of inquest or inquiry for the

death of any prisoner, however caused, which occurs in a police

lock-up.

As the Commission has noted in this Report, coroners have

not been able to perform their duties satisfactorily in accordance

with the Act and this omission has detracted from the

accountability of the GPF for killings which have been committed

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by the GPF or which have occurred in police lock-ups. The

Commission has highlighted in section 10 of this Report some

institutional weaknesses of coroners.

Under section 7 (1) of the Police Act, the Commissioner of

Police is responsible to the executive authority of the Minister

responsible for Home Affairs. It has already been mentioned that

section 7 (1) must be construed as limiting the executive

authority of the Minister to giving orders and directions of an

executive nature to the Commissioner and not as to extending to

intrusion on a case-by-case basis into the administrative

authority of the Commissioner to command and superintend the

GPF. While the Minister is accountable to the National Assembly

for the exercise of his executive authority to give general orders

and directions to the Commissioner, and the Commissioner is

responsible to the Minister for the general administration of the

GPF, the Minister has no disciplinary control or authority over the

Commissioner who holds constitutional office.

The Commissioner can be suspended from office only if the

Prime Minister or the Chairman of the Police Service Commission

(PSC), acting in accordance with article 225 (4) of the

Constitution, advises the President that the question of removing

the Commissioner from office for inability to perform his duties

should be investigated and the President, having referred the

matter for investigation to a tribunal appointed by him in

accordance with article 225 (4), is advised by the PSC that the

Commissioner should be suspended from holding office pending

the investigation. Only if the tribunal, after concluding its

investigation, recommends to the President that the

Commissioner ought to be removed from office, the President

can exercise his power to do so.

In the view of the Commission, while the Commissioner is

responsible to the Minister for the general administration of the

GPF, it is fit and proper that the Minister remains powerless to

discipline the Commissioner since this would render the

Commissioner institutionally dependent on the political Minister.

However, it seems fit and proper that the Commissioner should

be responsible to the executive authority of the Minister for the

general administration of the GPF, since the Minister has

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executive responsibility to the National Assembly for the internal

security of the country.

While the disciplinary arrangements for the Commissioner

are clear in the Constitution, it appears that the GPF is unsure as

to whether the exercise of disciplinary control over Deputy

Commissioners of Police is equally clearly prescribed by the

Constitution. The Commission has examined the provisions of

the Constitution, along with related statutory provisions, and is

convinced that the Constitution does provide for the exercise of

disciplinary control over Deputy Commissioners.

While Deputy Commissioners are appointed in accordance

with the procedure which applies equally to the Commissioner of

Police (article 211(1)), it is correct that they cannot be removed

from office or otherwise disciplined by the same constitutional

processes which apply to the Commissioner.

Article 211(4) provides:

The provisions of article 225 (which relate to removal from office) shall apply to the Commissioner, and the prescribed authority for the purposes of paragraph (4) of that article shall be the Prime Minister or the Chairman of the Police Service Commission, and for the purposes of paragraph (6) of that article shall be the Police Service Commission.

Thus, article 211 (4) applies to article 225, and article 225,

while it applies to removal from office of the Commissioner, does

not apply to Deputy Commissioners.


Subject to the provisions of article 211(1) the power to make appointments to any offices in the Police Force of or above the rank of Inspector, the power to exercise disciplinary control over persons holding or acting in such offices and the power to remove such persons from office shall vest in the Police Service Commission. (emphasis added)

Clearly, article 212(1) vests the power to exercise

disciplinary control over and to remove all persons holding or

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acting in offices of or above the rank of inspector in the PSC.

Deputy Commissioners, being holders of offices above the rank

of Inspector, can therefore be disciplined or removed from office

by the Police Service Commission.

But, under article 212 (2) of the Constitution, the Police

Service Commission may, by written directions, delegate any of

its powers under article 212 (1) to either the Commissioner of

Police, or any one or more of its members, or any other member

of the GPF. Therefore, the power to exercise disciplinary control

over, or to remove a Deputy Commissioner from office, lies in the

Police Service Commission or its delegate which may be the

Commissioner, or any one or more of its members, or any

member of the GPF (which is quite unlikely in the case of a

Deputy Commissioner).

Under section 3(1)(a) of the Police (Discipline) Act, Chapter

17:01, there is no right of appeal where a decision is made by a

majority of the members of the Police Service Commission. But

an appeal would lie to the Police Service Commission if that

power has been exercised by the Commissioner or any member

or members of the Police Service Commission as delegates (not

being a majority of the Police Service Commission) (Section 3 (1)

of the Police (Discipline) Act.

While Deputy Commissioners are appointed in the same

manner as the Commissioner of Police, the procedure governing

disciplinary control and removal from office is different. It should

be noted, however, that under the Police (Discipline) Act, there is

a variety of penalties which can be imposed upon Deputy

Commissioners for misconduct. On the other hand, when article

225 is applied to the Commissioner, the only issue is whether he

should be removed from office, either for inability to discharge

the functions of his office or misconduct. Those are the only two

grounds on which the Commissioner can be removed from office.

Acting inconsistent with the general orders and directions

of the Minister made under section 7(1) of the Police Act may

constitute such misconduct. However, if the Minister acts ultra

vires his statutory power to give general orders and directions,

the Commissioner cannot be guilty of misconduct. The

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importance of defining the nature and extent of ministerial power

under section 7 (1) of the Police Act is not insignificant.

Proposals

In addition to testimony regarding the existing statutory

relationship between the Commissioner of Police and the

Minister, the Commission received a number of testimonies

proposing further models for ensuring civilian accountability. It

would be impossible to cite them all, or explore each of them in

the depth required, but all of them seek to ensure that the police

are held to account effectively for their actions.

One series of proposals related to having some kind of

civilian involvement in the oversight of policing. The GHRA

proposed a Civilian Oversight Board such as found routinely in

other countries. Its duties would include developing a national

policy on crime and security, producing an efficient police force

which could attract good candidates, and establishing an

impartial mechanism for complaints.

The Guyana Bar Association (GBA) proposed a civilian

board appointed by the National Assembly and responsible to the

Minister for the general administration of the police. Whereas,

the Commissioner would act as the day-to-day manager of the

police, the board (which would meet on a regular basis) would

have overall management responsibility.

In other submissions, civilian panels were proposed for

specific areas of work e.g., a civilian panel to determine the

granting or revocation of firearms licences. The Minister of Home

Affairs indicated that the Government is considering establishing

an advisory body (a National Commission on Law and Order) that

would include politicians, religious leaders, labour

representatives and other members of civil society.

Other contributors concentrated on the role of Parliament

in the oversight of the police. The PNC-R noted that the

Caribbean Community (CARICOM) has recommended that there

should be parliamentary oversight committees in each member

country to oversee law enforcement. The African Cultural and

Development Association (ACDA) argued that a parliamentary

oversight committee should oversee the work of the Police

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Services Commission. The Rise Organise and Rebuild Guyana

Movement (ROAR) argued for a parliamentary Protective Forces

Commission.

Yet others commented on, and often proposed changes

to, the systems that already exist, for example, the role and

composition of the Police Services Commission. The Guyana

Private Sector Commission argued that the Police Service

Commission needs to be broadly based and address key policing

issues such as promotion, discipline, addressing corruption, and

the development of good practice guidance. Another submission

argued for a Judicial Services Commission that would look at both

policing and criminal justice issues and be independent of

political control with members of civil society.

The Commission recognised that several of these options

might have merit, but thought it particularly important to

comment on the responsibility of the Minister to report to

Parliament on policing issues. Policing is carried out for the good

of the general public and, therefore, the public has a right

through elected representatives to hold the police to account.

Ensuring the accountability of the police in matters of public

safety is an issue of paramount importance in terms of national

security.

Accordingly, the Commission recommends that a

Commission on Public Safety be established by Parliament to

safeguard this public interest. It envisages that this body would

hold the Minister of Home Affairs accountable to Parliament in a

way similar to the function performed by the Public Accounts

Committee in relation to the Finance Minister. If this

recommendation is accepted, it will be a matter for Parliament to

decide the exact terms of reference for the new Commission.

Consideration might however be given to issues such as

the need for the Police to report regularly to the public on its

work both by an annual report and other such materials; the

collection and dissemination of statistics about levels of crime

(and different kinds of crime), and police success and failure

rates, which would allow the public to assess what is and is not

working well; and the need for the police to improve its public

relations function.

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Recommendations

With regard to “accountability to civilian authority” the


54. On account of the DPP’s constitutional powers, the GPF

should be mindful of its conventional obligation to give

effect to advice by the DPP; only in rare cases should a

different course be taken.

55. Parliament should establish a Commission on Public

Safety to which the Minister of Home Affairs would be

answerable.

56. Matters of priority for such a Commission could include

the police annual report and the collection and

dissemination of crime statistics.

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Section 8:Complaints against Police

In this section, the Commission examines, among

other things, issues of public accountability and

discipline.

Public confidence in the police can be greatly strengthened

by the existence of clear mechanisms for ensuring transparency

and accountability. Effective police complaints systems are an

important building block in ensuring a weeding out of the bad

elements and encouraging good practice by all officers. In an

effort to ensure that misconduct by members of the GPF can be

reported, properly investigated and, if necessary, be the subject

matter of appropriate disciplinary or criminal charges, Parliament

passed the Police Complaints Authority Act 1989, under which

the Police Complaints Authority (PCA) was established.

Jurisdiction

The jurisdiction of the Police Complaints Authority is

invoked by (1) a complaint made under section 8 of the Act by

any person who has reasonable cause to believe that a member

of the GPF is guilty of some form of professional misconduct; (2)

a complaint made or information given under section 12 of the

Act that a member of the GPF has unlawfully caused the death of

a person or has committed an offence under sections 48, 49, 50,

55, 56 or 57 of the Criminal Law (Offences) Act, CAP. 8:01

(Offences relating to injury to the person).

It should be noted that any member of the GPF who has

received a complaint or information that any of the offences

mentioned in section 12 has been committed by any member of

the GPF commits an offence against discipline if he or she omits

to forthwith inform the PCA of the particulars of the complaint or

information.

Where an allegation of misconduct under section 12 of the

1989 Act is made, the PCA refers the complaint to the

Commissioner of Police for an investigation to be conducted.

After completion of investigations, the Commissioner must

submit a report to the PCA for its comments thereon; these

comments must be taken into account in deciding whether to

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institute disciplinary charges against the suspected offender. On

the conclusion of investigation into the disciplinary charges, the

Commissioner must submit another report to the PCA for its

comments. These must be taken into account before punishment

is imposed by the Commissioner or, depending on the rank of the

offender, the Police Service Commission. Thus, while the PCA has

no investigative role into such allegations, its recommendations

must be taken into account at both stages of the disciplinary

process.

The situation is different where the complaint or

information relates to offences within the purview of section 12

(i.e., charges of causing unlawful death or injury to the person).

The PCA is required by statute to supervise the investigations,

which must be conducted by an appropriate member of the GPF,

approved by the Chairman. After completion of investigations,

the policeman or woman must submit to the PCA a report

containing a summary of the steps and proceedings taken into

the investigations, and the PCA’s conclusions. The PCA, after

considering the evidence and other matters relevant to the

investigations, must submit to the DPP a statement containing

(1) whether the investigations were conducted to his satisfaction;

(2) any particular(s) in respect of which the investigations were

not conducted to his satisfaction; and (3) any other prescribed

particulars. Copies of this statement must be forwarded to the

Commissioner and the Minister. In deciding whether a

prosecution should ensue, the DPP or the Commissioner must

pay due regard to that statement of the PCA.

Additionally, by section 10 of the 1989 Act, where a

complaint to the PCA relates to the refusal or failure of any

member of the GPF in charge of a police station or breach to

record any complaint or information, the PCA, upon being

satisfied that the complaint or information ought to have been so

recorded and investigated, is empowered to direct that member

to record the information and investigate the same. Any failure

or refusal without lawful excuse to comply with such a direction

constitutes misconduct for the purposes of the Police (Discipline)

Act. Section 10 therefore confers a useful intrusive power into

the command and operational structure of the GPF,

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notwithstanding the amplitude of power reposed in the

Commissioner under section 7 of the Police Act CAP. 16:02.

By section 18 of the Act, the functional independence of

the PCA is assured since it “shall not be subject to the direction

or control of any other person or authority”, an independence

akin to that of the DPP.

The PCA has been in existence since 1989 – 14 years. Yet,

for a 14-year-old public institution, its impact on public

consciousness and public confidence has been very limited.

Several persons appearing before the Commission, who alleged

that they were the victims of unlawful police violence or other

misconduct, testified that they never knew of the PCA’s

existence. Other witnesses attributed their failure to contact the

PCA to a lack of confidence in that institution. Others claimed

that they made reports to the PCA, but either heard nothing from

it, or received no positive results.

The Commission was made aware of a variety of recent

initiatives taken by the present incumbent of the office to make

his office and his functions better known, including visits outside

of Georgetown, the production and distribution of a leaflet,

contact with the police and individual lawyers, etc. It is however

clear to the Commission that the functions, powers and duties of

the PCA must be made a matter of much greater public

awareness. Complainants, in particular, must be kept aware of

actions taken by the PCA on their concerns.

As noted, section 12 requires the PCA to supervise certain

police investigations. The Commission is concerned that this

does not appear to always happen, and it has been advised by

the Chairman that the PCA’s supervisory investigative power is

considerably constrained by the lack of information, human

resources and/or dilatory responses from the GPF. In other

words, while the COP and the Chairman may enjoy a good

working relationship, the flow of the requisite information to

enable the PCA to undertake and perform statutory supervisory

investigative duty needs serious review.

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It is a breach of discipline for any member of the GPF who

has received a complaint or information of any unlawful killing by

a member of the GPF or the commission of any offence under

sections 48, 49, 50, 55, 56, or 57 of the Criminal Law (Offences)

Act to fail to forthwith inform the PCA. No case of any member of

the GPF being disciplined for such an omission has been brought

to the attention of the Commission. It is possible that, even 14

years after the PCA Act has been passed, members of the GPF

are generally unaware of their responsibilities under the said Act.

This is a matter of police training and instruction lagging behind

social reality and, therefore, in need of attention.

The Commission has been informed that the police

generally investigate such complaints or reports, and then

forward the results of the completed investigations to the Office

of the DPP for advice. In such cases, it does appear that the PCA

is completely side-lined or disregarded, even if inadvertently.

The result is that, in the more serious matters i.e., allegations of

criminal offences committed by members of the GPF as

mentioned in section 12, the supervisory investigative

jurisdiction of the PCA is circumvented.

The main criticism levelled against the PCA Act by

presenters is that it leaves the Police to investigate the Police,

albeit under the supervision of the PCA in relation to the more

serious complaints mentioned in section 12. Presenters have

advocated that PCA should have its own civilian investigative

body to conduct its investigations in this regard. The

Commission, however, is of the view that such investigations are

more suited to persons who are trained, empowered, and are

likely to achieve the desired results. This means that such

investigations should be conducted by trained police

investigators. To inspire in such investigative activities greater

confidence the Commission believes that they must be officers

approved, and directly responsible and accountable to, the PCA.

Moreover, disciplinary offences are eminently suited for

investigations by members of the GPF since they are basic to the

welfare and function of the GPF. However, the Commission is of

the opinion that police investigators who are approved by the

PCA to conduct investigations under its supervision should carry

such investigations from the office of the PCA and not from the

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Office of Professional Responsibility (OPR) within the GPF.

Additionally all approved investigators should be seconded and

transferred to the office of the PCA so as to facilitate the

requisite level of effective supervision by the PCA, and remove

any misperception that their investigations are supervised and

controlled by the GPF rather than the PCA.

It should be noted that under section 20 of the PCA Act:

It shall be the duty of every member of the Force to render to the Authority and the officers and employees provided to the Authority under Section 6 such assistance as the Authority may request for the purpose of discharging the functions of the Authority.

Under section 11 of the PCA Act, the refusal or failure

without lawful excuse by a member of the GPF to comply with

any direction or request made to him by the Authority

constitutes misconduct or misbehaviour. Therefore, even though

investigations are carried out by members of the GPF, such

investigators and other members of the GPF are not free to

frustrate the investigative supervision of the PCA, or its

supervisory investigative officers, with impunity.

The Commission received credible evidence that the office

of the PCA is under-staffed and otherwise under-resourced and

that, if it were to perform all its statutory duties, it would be hard

pressed even if it had its full staff complement. Allegations of

police misconduct have increased appreciably and the

Commission therefore recommends that the Minister fulfil his

statutory responsibility as mandated by section 6 of the Act

which states:

The Minister shall provide the Authority with a Secretary and such other officers and employees as are required for the proper performance of his functions.(emphasis added)

It is recommended that these officers and employees

should include persons drawn from the pool of retired police

officers (particularly from the CID) and others with the requisite

skills-related competence. With this injection of resources, and

important new authority to investigate all serious complaints

against the police, it is to be hoped that the PCA will become a

much more dynamic and energetic office. The Chairman, and

other panel members, should do much more media and public

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outreach work and should continue to organise routine and

regular sessions outside of Georgetown. In the longer term,

serious consideration should be given to the PCA having

additional offices outside of the capital.

It is vitally important that the PCA be, and be seen to be,

independent. One issue which concerned the Commission was

how best to ensure the PCA’s financial independence. No formal

recommendations about the necessary arrangements were

agreed, but the issue is sufficiently serious to engage

parliamentary attention.

Furthermore, the Commission believes that, in time, it may

be appropriate to increase the range of serious offences,

including corruption, made subject to the oversight and

investigation by the PCA and, in this regard, the PCA may truly

achieve the desired objective in the eyes of the general public.

Recommendations

With regard to “complaints against Police” the Commission


57. Training and instruction should be provided for

policemen to create awareness of their responsibilities

under the Police Complaints Authority Act.

58. The Police Complaints Authority (PCA) should be

provided with an investigative team consisting of

trained police investigators who are directly responsible

and accountable to the Authority.

59. All investigators functioning in such a capacity should

be seconded and transferred to the PCA for the purpose

of transparency.

60. Staffing of the PCA should be completed in accordance

with its legislation utilising retired police officers an

others with requisite skills and competence.

61. The independence of the PCA should be maintained by

providing more administrative and financial resources.

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Section 9:Firearm Licences

In this section, the Commission examines the “rules,

regulations, criteria for granting and controls regarding

issuance of firearm licences.”

Since, in Guyana, there is no fundamental or constitutional

right to bear arms, whether in self-defence or in defence of

others or in defence of property or country, Parliament has the

absolute authority to make provision for the importation, sale,

possession and use of firearms and for the registration and

licensing of firearms.

Authority

Parliament has exercised this authority by enacting the

Firearms Act, Chapter 16:05. The grant of firearm licences is

governed by section 18 of the Firearms Act. Section 18(1)

provides:

An application for the grant of a licence under this section shall be made in the prescribed form to the prescribed officer for the area in which the applicant resides…

Section 18(2) provides:

A licence or permit shall be granted by the prescribed officer in such cases only in which he is satisfied that the applicant has a good reason for purchasing, acquiring or having in his possession the firearm or ammunition… and can be permitted to have in his possession that firearm or ammunition without danger to the public or to the peace:

Provided that a licence or permit shall not be granted to a person whom the prescribed officer has reason to believe to be prohibited by this Act from possessing a firearm to which this Part applies, or to be of intemperate habits or unsound mind, or to be for any reason unfitted to be entrusted with such a firearm.

Under Section 45(1),

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The Minister may make regulations for any of the following purposes-

(b) appointing a person to be the prescribed officer for any purpose under this Act and prescribing the area within which such person shall exercise authority.

It can readily be seen from sections 18(1) and 45(1)(b) that

Parliament did not itself prescribe a person to be the authority

for the granting of firearm licences but empowered the Minister

to do so by regulation. Parliament must have intended that the

Minister himself should not have the direct statutory function of

granting firearm licences but rather should be statutorily

responsible for appointing a fit and proper person to do so. It is

instructive to note that, by comparison, under section 32,

Parliament has directly conferred the Minister himself with the

power to authorise the possession of fully automatic firearms or

machine-guns (as such firearms are commonly called). This

power is usually employed for the purpose of arming

enforcement agencies in consonance with the nature of their

duties.

Under Regulation 3 of the Firearm Regulations made by

the Minister under section 45(1)(b) of the Act, it is provided:

For the purposes of sections 18,19,20,27 and 40 of the Act, the prescribed authority for every police division (within the meaning of the Police Act) shall be the police officer for the time being in command of the Police in that division and any police officer under his command not below rank of assistant superintendent.

Thus, the prescribed officers for the purpose of section 18

are the divisional commanders and officers of or above the rank

of assistant superintendent under their command — not because

Parliament has so designated but because the Minister has so

designated by uniform Regulations made under section 45(1).

Presenters on behalf of the GPF informed the Commission

that the procedure which is applied to the assessment of firearm

licence applications is contained in Standing Order 91/ 1964 of

the GPF. On the application of the procedure contained in the

said Standing Order, it has historically been the practice for a

firearm licence to be granted by divisional commanders only if

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the Commissioner of Police and /or the Minister approve the

application of the grant. On the other hand, a firearm licence is

not granted if the Commissioner or Minister disapproves of any

proposed grant. The practice has become so commonplace and

ingrained that applications for firearm licences are routinely

addressed to the Commissioner of Police rather than to the

prescribed authority, i.e., the relevant divisional commander for

the area in which the applicant resides.

It is the considered view of the Commission that Standing

Order 91/64 cannot be lawfully substituted for the provisions of

section 18 of the Firearms Act and Regulation 3 of the Firearms

Regulations. A standing order made by a Commissioner of Police

cannot replace section 18 of the Firearms Act and regulation 3 of

the Firearm Regulations. The procedure that applies to the

applications for firearm licences is the procedure prescribed

under the Firearms Act and not the procedure made by a

Commissioner of Police, whether or not made under the Police

Act.

The Commission believes that Standing Order 91/64 has

originated from a misperception of the application of section 7(1)

of the Police Act. The fact that section 7(1) of the Police Act

confers on the Commissioner that overall function of command

and superintendence of the entire GPF subject to the general

orders and directions of the Minister might well have long

inclined those officials to the erroneous view that they have the

statutory authority to arrogate to themselves the statutory

function of Divisional Commanders (as prescribed officers under

regulation 3 of the Firearms Regulations) under section 18(2) of

the Firearms Act on the principle of administrative or executive

superiority.

The power of the Commissioner to command and

superintend the GPF and the power of the Minister to give

general orders and directions to the Commissioner, are powers

conferred under the Police Act and have nothing to do with the

statutory function of divisional commanders as prescribed

officers under the Firearms Act and, vice versa. If it were

otherwise, the powers conferred on the Commissioner and the

Minister under section 7(1) of the Police Act would necessarily

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entail a power to procedurally amend section 18(2) and

Regulation 3 on the principle of administrative and executive

superiority –a clear transgression of the principle of separation of

powers. Certainly, neither the Commissioner nor the Minister has

the power of statutory amendment of the Firearms Act or

Regulations made thereunder by virtue of sections 7(1) of the

Police Act.

The Commission accepts that there might have been good

and valid reasons for the making of Standing Order 91/64 and

that such reasons may still be of current relevance. If, however,

the Minister believes that Divisional Commanders cannot be

relied upon to properly perform their statutory function, the

remedy lies not in administrative or executive usurpation of their

statutory functions under the Firearms Act but rather in the

utilisation of his ministerial regulatory powers under section 45

(1)(d) of the said Act, especially having regard to section 45(2) of

the Act. Under section 45(1) of the Act:

The Minister may make regulations for any of the following purposes-

(a) prescribing the form of firearm licence and of all other documents required by this Act;

b) appointing a person to be the prescribed authority for any purpose under this Act and prescribing the area within which such person shall exercise authority;

(c) prescribing any other thing which under this Act is to be prescribed;

(d) regulating the manner in which any person is to carry out his duties under the Act

while section 45(2) provides:

Regulations under this section may be of such a nature as to render more strict the operation of any of the provisions of this Act and in such case the said provisions shall have effect as limited by regulations as aforesaid.The Minister can, under section 45(1)(d), make regulations

under which prescribed officers (divisional commanders) are to

execute their statutory duties and such regulations can

effectively limit and restrict the operations of the provisions of

the Act in relation to the granting of firearm licences. Thus, while

the Minister cannot, by regulation, amend the statutory criteria

for the grant or refusal of firearm licences, he can by regulation

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prescribe a procedure by which prescribed officers are to be

satisfied that such criteria have been met-particularly if such

procedure entails limiting the scope of the statutory authority of

such prescribed officers to grant licences. It is recommended

that the Minister utilise his regulatory power under section 45 of

the Firearms Act (1) to impose upon divisional commanders the

procedural duty of seeking the opinion of the Commissioner as to

whether there is any reason why an applicant is unfit to be

entrusted with a firearm and (2) to render the opinion of the

Commissioner that an applicant is so unfit presumptively

conclusive on prescribed officers in every original application for

a firearm licence. Such a regulatory procedure would be in

consonance with Standing Order 91/64 and section 45 (2) of the

Firearms Act since it would relate not to widening but to

restricting procedurally the authority of prescribed officers to

grant firearm licences.

It is the Minister who has statutory responsibility for

carrying the provisions of the Firearms Act into effect (Section

45(1)(b)) and it is the Minister who appoints prescribed officers

(Section 45(1)(b)) and can prescribe the procedure by which

such prescribed officers are to carry out their duties under the

Act (Section 45(1)(b)). It is the Minister on whom Parliament has

reposed general responsibility for firearms control. However, it is

important to note that Parliament intended that his powers

should be exercised by uniform and standard Regulations and

not by direct supervision.

While the Minister regulates by such Regulations, there is a

need for some authority to have a supervisory function over such

prescribed officers to ensure that they comply with the

provisions of the Act and the ministerial Regulations. It does

appear to the Commission that the Commissioner of Police who

already has administrative control over divisional commanders in

the performance of police functions under the Police Act, is the

fit and proper person on whom this supervisory power over

divisional commanders as prescribed officers in the performance

of their functions under the Firearms Act, should be reposed. The

Commissioner should, in turn, be responsible to the Minister for

the performance of his supervisory functions.

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It is therefore recommended that Regulation 3 of the

Firearms Regulations be amended by the insertion of the words

“and every such prescribed officer shall be under the supervision

of the Commissioner of Police who shall be responsible to the

Minister for the performance of his supervisory function” at the

end of Regulation 3. Such an amendment falls within the ambit

of section 45(1)(d) and (h).

Interpretation

The above recommendations in the nature of regulatory

amendments will impose the requisite supervisory control over

the authority of divisional commanders as prescribed officers in

consonance with the objective and substance of Standing Order

91/64, which has been misconceived and misapplied as far back

as in 1964. It must be noted that the Minister takes the view that

Standing Order 91/64 has not been misconceived and is being

applied intra vires the Police Act. But the Police Act has nothing

to do with the granting of firearm licences.

The Commission is of the view that the Standing Order is

ultra vires the Firearms Act and that the two Acts cannot enjoy a

marriage of convenience so as to allow executive and

administrative authority conferred by section 7(1) of the Police

Act to override the statutory authority of the divisional

commanders as prescribed officers under section 18 of the

Firearms Act. The Commission sees the need for this irregular

practice to be regularised in accordance with the law and has

accordingly made recommendations for such regularisation given

the wisdom which underlies Standing Order 91/64 which has

been applied by successive Commissioners and Ministers since

1964.

It is significant that the function imposed or conferred by

section 18(2) of the Firearms Act on the prescribed officers

involves the performance of a duty rather than the exercise of a

discretionary power.


A licence or permit shall be granted by the prescribed officer in such cases only in which he is satisfied...(emphasis added)

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while the proviso to section 18 (2) states:

Provided that a licence shall not be granted…(emphasis added)

While the word “shall” can be interpreted to mean “may”

depending on its contextual use, the words “shall” and “shall

not” do appear to be mandatory in the context of section 18(2)

and not discretionary. Section 18(2), therefore, mandates a

prescribed officer to grant firearm licences on application but

only where he is satisfied that (1) the applicant has good reason

for possessing the firearm applied for ; (2) possession of the

firearm by the applicant will be without danger to the public

safety or the peace and where he does not have any reason to

believe that (a) the applicant is prohibited by the Act from

possessing a firearm; or (b) the applicant is of intemperate habits

or unsound mind; or (c) the applicant is unfit for any reason to be

entrusted with a firearm.

If all of these statutory criteria or requirements for the

grant of a firearm licence have been satisfied, the prescribed

officer has no discretionary power to refuse the grant. On the

other hand, if any single statutory criterion has not been met,

the prescribed officer has no discretionary power to grant the

application.

Section 18(9) of the Firearms Act confers on the applicant

the right of appeal by way of written petition to the President

from a refusal by the prescribed officer. But, significantly, there

is no provision that enables any other authority, except the

prescribed officer himself, to revoke a licence that has been

granted in disregard of the criteria specified by the Firearms Act

(section 18(8)). In effect, only the prescribed officer can review

and revoke his own grant while the refusal to grant is appealable

to no less an authority than the President himself. What happens

if the prescribed officer does not review and revoke his own

grant which has been made in disregard of a criterion specified

by the Act? Nothing happens. More significantly, it would seem to

be an anomaly that section 18(8) appears to confer a

discretionary power, rather than a duty, on the prescribed officer

to revoke a licence on grounds that specifically relate to non-

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compliance with the statutory requirements for the mandatory

grant. Section 18(8) provides:

A firearm licence may be revoked by the prescribed officer for that area in which the holder resides if

(a) the prescribed officer is satisfied that the holder is prohibited by this Act from possessing a firearm to which this Part applies, or is of intemperate habits or unsound mind, or is otherwise unfit to be entrusted with such a firearm, or for any reason cannot be permitted to have in his possession without danger to the public safety or to the peace such firearm as may be included in the licence; or

(b) the holder fails to comply with any notice under sub-section (6) requiring him to deliver up the licence. (emphasis added)

It is the view of the Commission that if the prescribed officer

becomes satisfied that the holder of the licence does not meet or

no longer meets any of the statutory criteria for the grant,

revocation should be mandatory and not discretionary.

Moreover, if it is desirable to enlarge the scope of remedial

action against any unlawful or improper grant made by a

prescribed officer or any improper omission to revoke a grant

which does not satisfy, or no longer satisfies, any of the statutory

criteria, the Commissioner should also be conferred with the

statutory power and duty of revocation. In other words, section

18(8) should be amended to read as follows:

A firearm licence shall be revoked by the prescribed officer for the area in which the holder resides or by the Commissioner

(a) if the prescribed officer or the Commissioner is satisfied that…

Such a revocation can be the subject matter of an appeal to the President under Section 18(9).

Implementation

The Commission does not view it as inappropriate that the

Minister has, by Regulation 3, appointed divisional commanders

of the GPF as prescribed officers. The issue of the granting of

firearm licences is a matter of internal security and it is prudent

to confer such a function on officers who ought to know the

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people in their respective divisions or are at least in a position to

readily acquire such knowledge. However, the Commission does

see the need for strict supervision and control by the

Commissioner of such Commanders in the granting of firearm

licences.

The Commission has been made aware of a significant

number of revocations of licences made on the ground of

improper or unwarranted use or breach of the conditions subject

to which the grants have been made (See Form 1). The

Commission wishes to point out that such revocations,

individually and collectively, point in the direction of ill-

considered grants and insufficient regard to the criteria which

govern such grants. The Commission has been alerted,

anecdotally, to the possibility that many grants have been, or are

being made on the basis of extra-legal considerations. In fact,

some presenters have recommended the revocation of all

firearm licences and for re-grants based on individual reviews of

all grants made. The Commission is of the view that revocation

cannot be done generally without infringing important legal

procedural safeguards, and can be done only on proper grounds

in each individual case. However, the Commission finds it

instructive to bring to the notice of all concerned in the

processes of granting firearm licences that the Act leans heavily

against liberal grants. Section 18 (2) of the Act provides:

A license or permit shall be granted by the prescribed officer in such cases only… (emphasis added)

while the proviso to section 18(2) states:

Provided that a licence or permit shall not be granted…(emphasis added)

Due reverence must be paid to the prohibitory words “in

such cases only” and “shall not be granted”. Such words are

severely restrictive, tightly circumscriptive and are binding on

prescribed officers.

The Commission has been made aware that the word

“grant” used in section 18 may lead to some confusion since,

under section 18(5), firearm licences continue in force until the

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end of the calendar year-and are “re-granted” thereafter

annually. The Commission takes the view that prescribed officers

are entitled under the law to review every existing grant annually

and may refuse to re-grant a licence. However, the exercise of

such a power of refusal to re-grant cannot be exercised except

for good cause and after affording the applicant a right to be

heard. An unsuccessful applicant can appeal to the President

under section 18(9) or apply to the High Court for Writs of

Certiorari and Mandamus to be issued against the relevant

prescribed officer. It should be noted that the Commission, in its

previous recommendation for regulatory changes, has

recommended that the prescribed officer must seek the opinion

of the Commissioner of Police as to whether an applicant, who is

not already the holder of a firearm licence, is fit or unfit to

possess a firearm. Such a regulatory duty would not apply to an

application for an annual re-grant. The Commission sees the

necessity of clarifying this issue since every annual firearm

licence commences with the words:

Licence is hereby granted...

Even though the firearm licence may be an annual re-

grant, it does not appear that the Firearms Act views the re-grant

as a mere renewal of an expired annual licence for revenue

purposes.

Concerns have been expressed about the manner in which

firearm licences are being granted and the involvement of the

Minister of Home Affairs in the process. It does appear to the

Commission that such concerns are rooted in an irregular

practice that began since 1964. The Minister of Home Affairs has

general overall responsibility under the Firearms Act for

regulating and controlling the grant of firearm licences and it

seems meet that the supervising authority should be

accountable to him for ensuring that the provisions of the Act

and the Regulations made by him are duly complied with.

However, it does not appear that the Firearms Act contemplates

that the Minister should have a veto over proposed individual

grants or refusals. While nothing appears to be intrinsically

wrong with prescribed officers seeking to ascertain whether any

person, including the Minister, has any ground for objecting to

any proposed grant of a firearm licence, any objection or non-

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objection should not be viewed by prescribed officers as

conclusive of the issue as to whether to grant or refuse an

application, but merely as a factor to be taken into account in

deciding the factual issue as to whether the applicant is fit to

possess a firearm. Objection or non-objection certificates issued

by the Ministry of Home Affairs have to be so viewed.

Even though members of the GPF are conferred with

functions and authority under the provisions of the Firearms Act,

and the Regulations made thereunder, such functions and

authority fall under the governance of the Firearms Act and not

under the Police Act. Under the Firearms Act, the Minister is

conferred with power to make Regulations that can be restrictive

of the operation of any of the provisions of the Act itself (Section

45 (2). Regulatory control over firearms must therefore be

exercised by the Minister under such wide powers to make

Regulations and not erroneously under any provision of the

Police Act that gives him the authority to give general orders and

directions to the Commissioner. To purport to exercise regulatory

control under the Police Act is to needlessly attract allegations of

unlawful political interference in the processes relating to the

grant or refusal of firearm licence applications. No doubt, such

allegations have been made against many Ministers, perhaps —

from a purely legal point of view — with justification.

Recommendations

With regard to the process governing the grant of “firearm

licences” the Commission recommends as follows:

62. Regulatory amendments to the Firearms Act should be

introduced in order to bolster supervisory control over

divisional commanders who grant firearm licences, in

keeping with the general objective of GPF Standing

Order 91/64.

63. The Commissioner of Police should continue to have

strict supervision and control over divisional

commanders with regard to the granting of firearm

licences.

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64. The GPF should adhere strictly to the statutory criteria

for the grants of firearm licences.

65. No attempt should be made to correct previous

indiscriminate grants of firearm licences by a general

recall and re-issue of existing licences.

66. The Minister of Home Affairs should utilise his statutory

powers to make standard and uniform regulations with

regard to firearm licensing so as to guard against

allegations of political interference.

Note: Annexed herewith is the independent view of

Commissioner C.R. Ramson S C on his interpretation of

the process governing the grant of firearm licences.

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FIREARM LICENCES

This area of concern contained in the Terms of Reference

of the Commission has received a great deal of attention both at

the time of the receipt of testimony and when the Commission

met in caucus to deliberate on the collective Report. For the

avoidance of doubt I set out hereunder the issue contained in

paragraph 2 (a) (v) of the TORS:

“The Rules, Regulations criteria for granting and controls

regarding issuance of firearm licences.”

This development was not totally unexpected in the light of

the misperceptions based on rumours at worst, and second-hand

information at best, from the presenters, other than the COP and

the MOHA. Some of the testimony sought to suggest a level of

nuanced skullduggery at the highest Executive levels, while

others insinuated a usurpation of the functions of the Competent

Authority, leading to general public disapprobation. If these

asseverations were indeed established it would have lent some

endorsement to the recent allegations of Executive Lawlessness,

conduct to which this Commission could not without some

imprudence and perversity give its imprimatur.

This polemical aspect of the Commission’s remit may not

readily be allowed to evaporate in the season of contention

which itself spawned its creation, but those citizens justifiably

concerned by the prevalence of the allegations of political

interference and discrimination may be assuaged by this

objective analysis, more informed by reference to the legal basis

for the interaction between the “Prescribed Officer” (competent

authority) the highest levels of the Police Force and the member

of the Executive responsible for the Guyana Police Force than the

ad hominem exhortations prevailing at this juncture of our

history.

In the discourse that follows reference will inevitably be

made to the Firearms Act, CAP 16:05 and its Regulations made

thereunder, the Police Act, CAP 16:01 and Standing Order 91 of

1964 of the GPF, in the light of the irrefragable contention that in

the context of any civilised country, the grant or issuing and

control of firearms are matters that inexorably touch and

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concern the security of the State. This trilogy of regulatory

authority contains the framework without which the integrity of

the organic structure of the enforcement agency would be

substantially impugned and/or dismantled, with resultant

consequences both retrospective and prospective.

This Commission has received testimony that the

procedure required to be followed consequent upon application

for the grant of a licence to purchase, acquire or possess a

firearm is as follows: -

(a) the application must be made to the Commander of

the Police Division (within the meaning of the Police

Act CAP 16:01). See S. 18 (1) of the Firearms Act

CAP 16:05 and Firearms Regulation 3 made under S.

45 of the said Act.

(b) The Prescribed Officer will submit a Report together

with search Forms C-17 and C-49 to the Head of

Special Branch. The Report must include full

particulars of the Applicant’s character as known and

the number of licensed firearms in the area in which

the Applicant desires to use the firearm. (Rule 1 –

Standing Order 91/1964.)

(c) Head of Special Branch will cause the normal

screening procedure to be carried out and will: -

(i) if there is a Security Objection, inform the

C.O.P. who will instruct the Prescribed Officer

to refuse the application, or;

(ii) if there is no Security Objections, endorse the

Application accordingly and pass it to the Ass.

Com. “Crime”. (Rule 2. S.O. 91/64).

(d) The Ass. Com. “Crime” will carry out exactly the

same procedure with respect to his responsibility for

the maintenance of a Record at the Firearm Section

of the Criminal Record Office and the General

Criminal Record Office and no Prescribed Officer shall

grant a licence to anyone whose name is on this

Record without the approval of the Commissioner. It

follows that this Record must be examined before

any new firearm licence is granted (see Rule 10 S.O.

89 and Rule 3 S.O. 91/64). He then forwards the

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Application to the C.O.P. indicating whether it should

be refused on the grounds of a criminal record or not.

(e) Thereafter if the C.O.P. is satisfied that the

Application was cleared as indicated in (c) and (d)

above, he shall forward it to the Hon. Minister with

his recommendations once the Application falls

within 4 categories. (See rule 4 S.O. 91/64)

There is some contention that Standing Order 91/1964 has

no statutory basis but it has been brought to the attention of the

Commission that the GPF is regulated by the provisions of the

Police Act, Standing Orders, Regulations made under the Police

Act and Force Orders. Neither Standing Orders nor Force Orders

have their genesis in any identifiable Statutory provision save

and except that the COP may give such orders and directions to

the Officers and Ranks in pursuit of his command and

superintendence of the Force under S. 7 of the Police Act.

The Prescribed Officer’s grant of a licence under S. 18 (2)

of the Firearms Act CAP 16:05 is predicated upon him being

“satisfied that the applicant has a good reason for purchasing,

acquiring or having in his possession the firearm … and can be

permitted to have in his possession that firearm … without

danger to the public or to the peace.”

This power is further hobbled by a proviso that no grant

shall be made to an applicant who “the Prescribed Officer has

reason to believe to be prohibited by this Act from possessing a

firearm to which this Part applies, or to be of intemperate habits

or unsound mind or to be for any reason unfitted to be entrusted

with such a firearm.”

A Prescribed Officer is, by regulation 3 of the Firearms

Regulations made by the Minister under S. 45 of the Firearms

Act, declared to be “the Police Officer for the time being in

command of the Police in that Division” (usually an Assistant

Commissioner) “and any Police Officer under his command not

below the rank of Assistant Superintendent.”

The word “Police” is defined in Webster’s Lexicon as a

Department of Government responsible for the preservation of

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Public Order, detection of crime and enforcement of civil law.

The collective agency is called the Police Force and by S. 3 (2) of

the Police Act its functions include the “prevention and detection

of Crime, the preservation of law and order, the preservation of

the peace, the repression of internal disturbance, the protection

of property, the apprehension of offenders and the due

enforcement of all laws and regulations…… and by S. 7, the

C.O.P shall “subject to the general orders and directions of the

Minister, have the command and superintendence of the Force

…… for the peace and good order throughout Guyana …..”.

Significantly, S. 9 provides that Assistance Commissioners shall

perform such duties as the COP may direct and S. 12 gives a

similar power with respect to Subordinate Officers and

constables.

In effect, these provisions could only be understood as

conferring on the COP a directional control either by way of oral

commands or if the situation warrants it, by way of written

orders, one of which is S.O. 91/64.

Fundamental to the resolution of this controversy is the

recognition that since 1964 the “policing” functions involved in

the current application process have been in practice found not

only necessary but this uninterrupted policy was adopted by

every Executive Administration since Independence. This ought

to be the surest index that the interlocking character of the

Firearms Act and the Police Act in an essentially security concern

is not to be treated with askance. There is a notion that the

major purpose for the mischief which informs the enactment of

one piece of legislation precludes the application of the general

law which governs the area of concern under review. In this

regard it has been canvassed that the provisions of the Police Act

and the procedural controls established thereunder by the COP

eg. Standing Orders, etc, have no place in regulating the grant

by the Prescribed Officer of a firearm licence, the command

structure of the GPF and/or the security sensitive nature of the

process involved, notwithstanding.

Significantly, S. 7 mandates that the COP be responsible to

the Minister for the peace and good order throughout Guyana. It

therefore cannot but be understood as meaning that the Minister

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is inextricably configured in the overall process of securing the

peace and good Order of the State. It is with this backdrop that

the view that the issue and grant of firearms, being a matter

which touches and concerns the security of the State, in every

sense of that expression, may be validated by reference to the

marriage of these Statutes. It cannot therefore be over-

emphasised that the foregoing provisions are so excruciatingly

plain that it would be pleonastic to attempt any expatiation of

the rudiments of their construction and interpretation by means

of an empirical analysis.

The incongruity of the contrary view lies in, inter alia, the

notion that the Prescribed Officer replaces or displaces the

Divisional Commander qua Police Officer, assuming thereby a

cognate character with imperial power de hors the chain of

command established not only by Standing Order 91/64 but also

de hors the command structure of the Guyana Police Force (of

which he is a part) as set out in the Police Act itself. I am

fortified in my view by the absence from S 18 (2) of the Firearms

Act CAP. 16:05 that, in the exercise of the power thereunder, the

Prescribed Officer must act “in his own deliberate judgment” or

with any such parallel conspectus/perspective. This Officer is

required to perform such duties and carry out such directions as

may be given to him by the COP. A concatenation of these

spurious notions understandably provides fertile ground for the

equally fallacious argumentation which leads to the ineluctable

but erroneous conclusion promised upon the view that the

Prescribed Officer has a “firearms” function, simpliciter. Even if

this were to be conceded, given the “policing” functions

conferred generally by the Firearms Act, and, in particular, the

intrinsic “policing” contributions before the application can be

validly processed, it would not be unfair to conclude that that

function bears a symbiotic, if not a peculiar Siamese relationship,

with the provisions of the Police Act. Aliter, the Prescribed

Officer would be seriously handicapped in properly processing

the application if he were to meet the strict requirements of

S.18(2).

Thus, it would be an act of delusional masochism to

persuade oneself that a Prescribed Officer, whoever he may be,

could validly comply with the circumscribed criteria under S. 18

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(2) of the Firearms Act without reference to the procedure set

out in Standing Order 91 of 1964. Regnant wisdom dictates that

the screening procedure set out in the Standing Order is a sine

qua non to the fulfillment of the prescription under S. 18 (2)

above.

Compelling testimony has been received by the

Commission from the major functionaries who are

unquestionably best qualified to justify the procedure adopted

but it is conceded that lay presenters have voiced their concerns

based upon their opinions and fears of abuse, and therefore it

would be remiss if the Administration were to overlook the axiom

that eternal vigilance is the price of freedom.

(All under scorings are for emphasis)

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Section 10: The Coroners Act

In this section, the Commission examines concerns

about the adequacy and application of the Coroners Act.

Every person in Guyana has a right to life. However,

contrary to public belief, the right to life, even though it is an

individual right, is not a private law right but a public law right.

Thus, the public law prohibits a person from attempting to take

his or her own life. Since the right to life is a right in public law,

the state and society have a public interest in the life of each

and every citizen.

Thus, whenever the life of anyone has been terminated

unnaturally, it becomes a matter of both public interest and duty

to have the circumstances connected with and the cause of

death determined. Such public interest and duty are intended to

be served by the provisions of the Coroners Act, Chapter 4:03

which are designed to ensure that every unnatural death is the

subject matter of a public investigation. Section 4 of the Act,

prescribes that:

Everyone who becomes aware of an unnatural death shall notify it to the coroner or at the nearest police station.

while section 39 renders the neglect to do so a criminal offence

punishable with a fine of nine thousand five hundred dollars.

Section 5 mandates a member of the GPF to whom an unnatural

death has been reported or who has become knowledgeable of

an unnatural death :

...shall forthwith cause a report thereof to be made to the coroner (emphasis added)

while section 6 mandates that a coroner to whom an unnatural

death has been reported or who becomes knowledgeable of such

a death shall:

forthwith cause due investigation to be made as to the cause of death and, if necessary, hold an inquest or, if the circumstances so require, shall hold an inquiry.(emphasis added)

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Thus, after the coroner causes due investigation to be

made as to the cause of death to determine whether the death is

due to a natural or unnatural cause, and finds that death is due

to an unnatural cause, he must hold an inquest or, if the

circumstances so require, an inquiry. Section 6 should be read

conjointly with sections 12 and 14. Section 12 provides:

Where the death of any person is reported to or first comes to the knowledge of the coroner as an unnatural death, he may make a preliminary investigation, and if he considers after doing so that it is unnecessary to hold an inquest or an inquiry, he may issue an order for the burial of the body;

while section 14 provides:

Where an unnatural death is reported to or comes to the knowledge of the coroner, he shall, subject to section 12, hold an inquest, except when he is authorised or required under this or any other Act to hold an inquiry and then he shall hold an inquiry.

Inquests

It can readily be seen that the preliminary investigation is

for the purpose of determining whether the death is an unnatural

death and, if it is not, then it is unnecessary to hold either an

inquest or an inquiry. But, if it is, the coroner must hold an

inquest unless he is authorised or required under the Act or other

Act to hold an inquiry. Under section 6, he can hold an inquiry “if

the circumstances so require.”

An inquest is defined in section 2 as:

...an investigation as to the cause of death held by the coroner with a jury as hereinafter provided (emphasis added)

while an inquiry is stated therein as meaning:

investigation held by a coroner without a

jury. (emphasis added)

Contrary to popular belief, the holding of an inquest or

inquiry is not necessarily dependent on the conclusion or results

of police investigations. Section 6 provides:

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Where an unnatural death is reported to or comes to the knowledge of the coroner, he shall, subject to the other provisions of the Act, forthwith cause due investigation to be made as to the cause of death and, if necessary, hold an inquest or, if the circumstances so require, shall hold an inquiry.

Clearly, an unnatural death can be reported to or can come

to the knowledge of, the coroner by way of information provided

by a person or persons who are not members of the GPF and the

fact that it is so reported does not relieve him of his statutory

duty to hold an inquest or inquiry. It is instructive to note that

section 21(2) provides:

Where a coroner whose duty it is to hold an inquest is informed prior to the commencement of the inquest that some person has been charged before a magistrate with the murder or manslaughter of the deceased, he shall, unless directed in writing to the contrary by the Director of Public Prosecutions, abstain from holding an inquest.

Thus, section 21(2) contemplates that the duty of the

coroner to hold an inquest can arise before the police conclude

their investigations. The Police ought not to charge without

sufficient evidence and section 21(2) contemplates a duty to

hold an inquest or inquiry even before the Police can charge- let

alone complete their investigations into a death. Section 35

further provides:

An inquest or inquiry may be adjourned by the coroner, if he sees fit, from place to place and from time to time until the whole of the evidence touching and concerning death or the cause thereof has been obtained.

Section 35 clearly envisages that the coroner can

commence holding an inquest or inquiry without obtaining all the

evidence and can adjourn such inquest or inquiry to obtain

further evidence. The duty of a coroner to hold an inquest or

inquiry cannot therefore be premised on the receipt of a copy of

Police investigations since the police can hardly be expected to

send a file of incomplete investigations to the coroner.

It has, however, long been the practice of the GPF to make

available to the coroner the copies of all statements taken in the

course of their investigations into an unnatural death after the

completion of investigations but only when a negative decision is

made as to whether a charge of murder or manslaughter should

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be instituted. If a decision is made to institute such a charge,

copies of the statements are not sent to the coroner simply

because no inquest can be commenced where such a charge is

to be instituted unless the DPP directs otherwise in writing

(section 21(2)).

Coroners have become so dependent on such police

investigations that, even though the duty to hold an inquest or

inquiry arises upon being informed of the unnatural death, no

inquest or inquiry is commenced without the receipt of the

copies of such statements from the GPF. In effect, such a

practice not only renders section 21(2) quite useless but

coroners tend to excuse their failure to commence inquests or

inquiries on the omission of the police to transmit to them copies

of the statements. The result is that the GPF is being blamed for

the coroners’ omissions to perform their statutory duties when

their duty at least to initiate action does not necessarily depend

on the police investigations. Section 38 provides:

Every coroner who neglects or refuses without reasonable excuse to hold an inquest or inquiry which is his duty to hold or to perform any duty which he is required to perform under this Act, shall be liable to a fine of forty- eight thousand seven hundred and fifty dollars recoverable before the High Court in its criminal jurisdiction on the motion of the Director of Public Prosecutions.(emphasis added)

Since there is no period specified by the Act within which a

coroner must commence the holding of an inquest or inquiry,

section 39 of the Interpretation and General Clauses Act, Chapter

2:01, becomes applicable. Section 39 provides:

In any written law, where no time is prescribed or allowed within which anything shall be done, such thing shall be done with all convenient speed, and as often as the prescribed occasion arises. (emphasis added)

Therefore, section 38 of the Coroners Act prescribes in

effect that inquests or inquiries should be held with all

convenient speed and there should be no undue or unreasonable

delay. The use of the words “forthwith” in sections 5 and 6 and

“all convenient speed” in section 22(1) combined with section 38

emphasise the need for urgency, or at least, no undue delay, in

the holding of inquests or inquiries by coroners.

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Coroners

There can be no doubt that there have been undue delays

in the holding of inquests or inquiries by coroners despite the

fact that such undue delays can attract criminal sanctions under

section 38. The Commission has received complaints of such

undue delays. Yet, there has been no known case in which the

DPP or the police have moved to prosecute any coroner for

neglecting or refusing to hold an inquest or inquiry “with all

convenient speed.” But there may be a quite interesting

explanation as to why inquests or inquiries have not been, and

are not being, held without undue delay with impunity. Under

section 2 of the Coroners Act, “coroner” is defined as:

The magistrate of the magisterial district in which an unnatural death occurs and, if the magistrate cannot conveniently or speedily be found or is unable to act, the nearest justice of peace who is able to act.(emphasis added)

Most magisterial districts e.g., Georgetown, Berbice and

Corentyne, have several magistrates serving the same

magisterial district. In those magisterial districts that have more

than one serving magistrate, the definite article “the” is most

inappropriate since it does not lend itself to identifying any

particular magistrate as the coroner. Therefore, responsibility

cannot attach to any particular one of those serving magistrates

with the result that there is room for avoidance of statutory

responsibility with impunity. The Commission therefore

recommends that the definition of “coroner” in section 2 should

be amended to read as follows:

…The magistrate of the magisterial district in which an unnatural death occurs and, in the case of a magisterial district which has more than one magistrate, every such magistrate and if a magistrate cannot conveniently or speedily be found, or is unable to act the nearest justice of the peace who is able to act.

Such a definition would make every magistrate a coroner

for the district in which he or she is serving. Liability will attach

to any magistrate to whom an unnatural death has been

reported and who fails to hold an inquest or inquiry with all

convenient speed. The loophole that currently exists in the

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definition of “coroner” allows for frustration of the provisions of

the Act and may be responsible for the state of helplessness that

currently attends efforts to have inquests or inquiries held

expeditiously.

Section 17 of the Coroners Act should also be amended to

allow a magistrate of another magisterial district to hold an

inquest or inquiry where the magistrate of any magisterial

district is unable to do so. In its present form, section 17 relates

only to inquiries and not inquests. No reason for such a

jurisdictional restriction is apparent.

Since section 6 already requires the coroner to hold an

inquest where necessary and an inquiry if the circumstances so

require, the power of the DPP under section 19 “to require a

coroner to hold an inquest or inquiry into the death of a person”

is a power to decide whether the coroner should hold either an

inquest rather than an inquiry and vice versa.

Normally, the coroner must hold an inquest rather than an

inquiry (section 14). But, exceptionally, he must hold an inquiry

rather than an inquest e.g., when the DPP requires him under

section 19 to do so. Section 6 authorises the coroner to hold an

inquiry if the circumstances so require. The circumstances would

so require where an unnatural death is not suspected or alleged

to have been caused by the unlawful act of another. Under

section 15, the coroner must hold an inquest and not an inquiry

in every case:

… of the death of any person confined in any prison or in any lock-up, or place of confinement for persons accused or convicted of having committed any offence except in cases where it is not practicable to obtain the services of a sufficient number of jurors.

The right to life is the most primary of all fundamental

rights as reflected in article 138 of the Constitution. The

importance of this right underlies and informs the provisions of

the Coroners Act that place emphasis on urgency in the holding

of inquests or inquiries. Prolonged and inordinate delays by

coroners not only give rise to the perception of insensitivity to

the fundamental right to life but of disregard for the express

mandates of the Coroners Act itself. While section 38 does

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criminalise and penalise the neglect or refusal to hold an inquest

or inquiry without reasonable excuse, it prescribed no fixed

period within which an inquest or inquiry should be held and

leaves the issue of criminality to be resolved on the

indefiniteness of the statutory implication of “with all convenient

speed” (section 39 of the Interpretation and General Clauses

Act). Bearing in mind that section 35 of the Coroners Act allows

for adjournments of inquests or inquiries for obtaining relevant

evidence, the Commission has reason to question the

effectiveness of this penal provision (Section 38).

Coroner’s Office

Since the application of the provisions of the Coroners Act

with its clear emphasis on urgency in the holding of inquests and

inquiries can do much to restore public confidence and to allay

public disquiet over the many cases of killings by, and of,

members of the GPF, there is need for the administrative

establishment of a coroner’s office staffed with some magistrates

with national jurisdiction to give effect to the provisions of the

Act. This office should fall under the administrative

superintendence of the Chief Magistrate and should be tasked

with the responsibility of holding inquests or inquiries where the

magistrate or magistrates of any magisterial district is or are

unable to do so. Since it has been recommended that section 17

of the Coroners Act should be amended to include both inquests

and inquiries, the Commission does not perceive that the

establishment of such a coroner’s office will require further

statutory amendment.

It has been mentioned that coroners conduct investigations

by way of inquest or inquiry on the basis of statements taken by

the police in the course of police investigations but the Act does

not contemplate such dependence. The current practice is not

consistent with but rather tends to negative the independence of

their investigations. There is need for coroners to have resources

that will enable them to place less reliance on police

investigations. In any event, police investigations may take a

long time to complete and, since the Act contemplates the

expeditious holding of inquests and inquiries, coroners cannot

depend on the completion of police investigation for the

performance of their statutory duties.

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A holistic review of the Coroners Act seems to be

necessary. Its provisions seem too removed and distant from

socio-legal realities and the objective of speedy independent

inquests and inquiries is difficult to achieve with its existing

provisions. Coroners have a duty to investigate by way of inquest

or inquiry but have no supporting information resources. They

are forced to depend on police investigations. In the more

populous magisterial districts, which have more than one

magistrate, it is difficult to identify the magisterial coroner since

the Act contemplates only one magisterial coroner. Justices of

the Peace, who are coroners in the absence of the magisterial

coroner, can hardly be viewed as having the requisite

competence to hold inquests or inquiries. It is therefore hardly a

matter of surprise that, despite efforts to have inquests and

inquiries expedited, little success has so far been achieved.

Public confidence in the judicial system, to the extent that

inquests and inquiries are not being held expeditiously, remains

low and public disquiet over cases of killing by or of members of

the GPF remains unquelled. The Coroners Act seems to be high

on ideals but low on achievement, partly through its own

inherent deficiencies and even inconsistencies. These need to

be corrected.

Recommendations

With regard to “the Coroners Act” the Commission


67. The definition of “coroner” in section 2 of the Act should

be amended to make every magistrate of each

Magisterial District a coroner for such District.

68. Section 17 of the Act should be amended to allow a

magistrate of another Magisterial District to hold either

an inquest or inquiry where the magistrate of any

Magisterial District is unable to do so.

69. A coroner’s office should be administratively established

to hold inquests or inquiries where the magistrate or

magistrates of any Magisterial District is unable to do

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so. It should be staffed with magistrates with national

jurisdiction and fall under the administrative

superintendence of the Chief Magistrate.

70. Coroners should be provided with investigative

resources to reduce their dependence on Police

investigations to enable them to conduct independent

investigations expediently rather than to continue to

rely solely on Police investigations.

71. There should be a holistic review of the Act to achieve

its high ideals and remedy its current deficiencies and

application.

Note: Annexed herewith is an independent view of

certain provisions of the Coroners Act by Commissioner

C.R. Ramson S C.

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THE CORONERS ACT

I have had the benefit of participating in the discussions

leading to the text of this Report and while, in general,

agreement has been reached on the issues therein it was found

necessary to prepare this Annexure which more accurately

reflects my conclusions on particular concerns contained herein.

While S. 4 of the Coroners Act CAP 4:03 requires any

person who becomes aware of an unnatural death to notify the

Coroner, S. 5 requires a Policeman to whom an unnatural death

is reported or to whose knowledge it has come, to forthwith

cause a report thereof to be made to the Coroner.

These two Sections contemplate two separate situations,

viz: -

(i) Where a private individual is aware of an unnatural

death he is required merely to notify the Coroner;

and

(ii) Where a Policeman becomes aware or receives a

report of an unnatural death he is required to

forthwith cause a report to be made to the Coroner.

“Notification” in (i) places a mere obligation on a private

individual to let the Coroner know of the unnatural death

whereas “cause a Report” imports into the obligation for the

Policeman, a requirement that a Report be given forthwith.

These respective obligations are essentially different in

substance in that a “Report” as interpreted in the Concise Oxford

Dictionary (10th ED) means “an account given of a matter after

investigation or consideration”; and he shall do so “forthwith”

which has been judicially interpreted in Guyana in the case of

Sookraj .v. Comptroller of Customs (G.C.A). This latter

expression allows for a lapse of time relative to the period during

which a Report is prepared after investigation and submitted to

the Coroner and does not mean “immediately” as is popularly

assumed.

The process aforementioned is a prelude to the imperative

investigation by the Coroner under S. 6 as to the cause of death.

In the event it is found necessary, the Coroner is required to hold

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either an Inquest or an Inquiry to determine if someone was

responsible for the unnatural death.

Therefore it becomes clear that the Coroner’s obligation to

conduct an Inquest or Inquiry is triggered after a Police

investigation, albeit it may not necessarily be completed at that

time, since by S. 21 (2) of the Act, the Coroner must “abstain

from holding an Inquest” where prior to him commencing an

Inquest a charge for murder or manslaughter has been

instituted. This assumes that charges would only be laid after

investigations are completed.

The Act therefore contemplates the necessary involvement

of the Police Force, as the sole enforcement agency of the

Government, without which the Coroner would be unable to carry

out his mandate. In this regard, members of the GPF need to co-

operate with the Coroner if Inquests are to be conducted as

contemplated by the Act i.e. forthwith.

More importantly, some uncertainty has been identified in

the definition of a Coroner and this is in need of review to avoid

the rationale for delay or non-performance currently in vogue.

Apart from that minor amendment, the Act as a whole is

adequate to meet the purpose for which it was designed. To

achieve this end, Agencies, e.g. GPF, Government Pathologist

and the Registrar of the Supreme Court who provides the

Coroner with a pool of Jurors, which are required to support the

functionality of the Office of Coroner, must be prepared to play

their part in a meaningful way. Therefore, any holistic review of

the Act would be tantamount to a legislative excess.

(all underscorings are for emphasis)

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Part 2

The Guyana Defence Force

162



changing context of the functions and operations of the

Guyana Defence Force, taking into consideration national

and international developments.

Composition

The Guyana Defence Force (GDF) is a public body

established and maintained under the authority of section 4 of

the Defence Act, Chapter 15:01. It is a unitary body even though

it comprises a regular Force and a reserve Force. Section 4 of the

Defence Act provides:

There shall be established and maintained in Guyana a force to be called the GUYANA DEFENCE FORCE consisting of --

(a) a regular Force; and(b) a reserve Force.

It is a fundamental mistake to take the view that the

reserve Force is supplementary to the GDF. The reserve Force is

an organic part of the GDF and to view it otherwise would

denude the Force of an essential statutory component and this,

perhaps, may account for the lack of focus by the GDF in this

regard.

Functions

Section 5 of the Defence Act provides:

The Force shall be charged with the defence of and maintenance of order in Guyana and with such other duties as may from time to time be defined by the Defence Board.

It can readily be seen that the functions and duties of the

GDF prescribed by Parliament are (1) the defence of Guyana; (2)

maintenance of order within Guyana; and (3) such additional

functions and duties as may be imposed by the Defence Board.

A major function of the GDF is the defence of Guyana from

external aggression. Guyana has the misfortune of having border

disputes with two of its neighbours, Venezuela and Suriname.

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Both countries, in view of their claim to portions of territory

which form part of the constitutional area of Guyana, not merely

pose serious threats to its territorial integrity but are positively

instrumental in impeding its economic and national development

as evidenced by the recent strident objections to the Beal

Aerospace Corporation Satellite launch project and the Jaling

Forest Industries investment plan and the forcible eviction of the

CGX Energy petroleum platform, in relation to areas claimed by

them, respectively.

While the Commission recognises that it is in Guyana’s

interest to pursue not a military, but a peaceful, solution to its

border dispute problems, the possibility that Venezuela and

Suriname may seek to assert their claims even in a limited way

by force of arms cannot be discounted. Guyana continues to rely

essentially on the principles of international law and on

diplomatic efforts coupled with the forging of strategic

relationships based on its interests. But the need for military

support of its peaceful efforts has occasionally manifested itself

and has brought home to the nation-state the importance of

military preparedness and vigilance as part and parcel of its

territorial defence efforts. As stated by the current United

Nations Secretary-General Kofi Annan: “You can do a lot with

diplomacy but, of course, you can do a lot more with diplomacy

backed up by firmness and force.”

In the context of Guyana, the deterrent effect of firmness

and force must find meaning in the attitude and capability of the

GDF.

Capability

The defence capability of the GDF should rest on the

quality and quantity of its personnel and the availability of

military materiel and equipment relevant to its defence functions

against territorial incursions. The Commission recognises that,

because of national budgetary constraints, acquisition of such

resources would necessitate prioritisation.

While recognising the need for early warning capabilities in

the air, on land and at sea; speed and mobility over operational

terrain; adequate fire support; and the ability to conduct

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sustained operations, the GDF has placed priority on the

development of its human capital. The GDF has stated:

The Force is nonetheless embarking on a procurement policy that addresses early warning capabilities in the air, on land and at sea. Having regard to the current threat and the concomitant demand for appropriate technology, it has addressed as well, speed and mobility over operational terrain, adequate fire support, and the ability to sustain operations. This is a national security imperative given the increased level of tasking. However, it does little good for the GDF to acquire state-of-the-art equipment (purchase or gift) if the soldiers do not know how to read and calculate sufficiently to operate them. Development of human capital therefore is not only a useful deduction but also crucial to operational effectiveness….

The Commission is of the view that military operations in

furtherance of training should not be unduly limited or curtailed

by financial considerations since defence is dependent on the

quality of trained soldiers and cannot be valued in monetary

terms. However, the GDF cannot lose sight of the fact that

financial resources must be managed in such a way that

maximum benefits are derived from the utilisation of such

limited resources. Therefore, the choice and conduct of training

for military operations must be informed by comparative

advantage and the objective of maximum benefit.

The Commission recognises that there often exist apparent

conflicts between the concepts of military necessity and

economic feasibility and that the two concepts are often

perceived as not being in consonance with each other. The

Commission is of the view that since the importance of territorial

defence cannot be properly measured with an economic

yardstick, what is in fact a military necessity should not be

viewed from the standpoint of economic feasibility. The label

`military necessity’, however, cannot be so used to justify

expenditures on training manoeuvres or operations which have

little or doubtful value.

The Commission noted that the issue of recapitalisation of

military equipment is also being addressed so that the GDF can

have the capability of early warning in the air, on land and at

sea, of speedy mobility over operational terrain and of adequate

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fire support and the ability to conduct sustained military

operations. Coupled with its drive to improve its human resource

capability so that its military equipment can be manned and

operated by trained and capable personnel, the GDF should be in

a position at least to present a credible defence posture which

would complement the nation’s diplomatic efforts and act as a

deterrent to territorial aggression.

Ground force

The GDF recommended that, in order to meet the demands

of a rapidly changing security environment, the Military Police

Corps should be upgraded; the artillery unit should be

strengthened; and another infantry battalion should be created.

The Commission is not convinced that, despite the level of the

threats posed by Venezuela and Suriname to Guyana’s territorial

integrity and the non–traditional transnational dangers to

national welfare posed by terrorism; drug-trafficking; illicit arms

trafficking; uncontrolled refugee migration; and trafficking in

human beings, there is a necessity for the creation of an

additional infantry battalion.

The Commission is aware that Venezuela and Suriname

have not ruled out the use of military force in asserting their

claim against Guyana’s territorial sovereignty. It is important that

Guyana should be perceived as having the military will and

capacity to effectively respond in defence of its territorial

integrity against armed incursions. It is equally important that

there should be no undue emphasis on the enhancement of

military capability disproportionate to manifest diplomatic and

other efforts towards a peaceful solution. Enhancement of

military capability, though desirable, must be accompanied by

proportionately strenuous diplomatic and other peaceful efforts

towards an amicable solution. Military capacity must always be

portrayed as a defensive back-up to, and not a diminution of

reliance on, such efforts.

The Commission noted that international terrorism; drug-

trafficking; illicit arms trading; and trafficking in human beings,

etc., increasingly pose transnational dangers to the vulnerable

social and economic fabric of small developing countries such as

Guyana. However, since the Guyana Police Force (GPF) has a

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greater functional relevance to crime prevention and law

enforcement than the GDF, it is the view of the Commission that

such dangers should primarily be met by augmenting the

capacity and the capability of the GPF and by strategic

international and bilateral agreements supported by appropriate

domestic legislation. Augmentation of the capacity of the GDF

should be premised upon its complementary role in this regard.

Coast Guard

The Commission is mindful of section 208 of the Defence

Act (as amended by section 2 of the Defence (Amendment) Act

1990) under which the Coast Guard was established and very

wide-ranging duties and responsibilities were imposed on it. In

order to enable the Coast Guard to carry out such duties and

responsibilities which relate to the enforcement of civil law,

members of the Coast Guard were conferred with Police powers,

authorities and privileges. Section 208 A (2) of the Act provides:

The members of the Coast Guard shall be primarily employed as a coast–watching force, maintaining a state of readiness to function as a specialised service, enforcing or assisting in the enforcement of all applicable laws on and under the high seas and waters subject to the jurisdiction of Guyana.

Section 208 A (4) further provides:

For the purposes of carrying out their duties the members of the Coast Guard shall have the same powers, authorities and privileges as are conferred by law on, and shall be liable to all the responsibilities of, members of the Police Force.

Members of the Coast Guard have responsibility for

enforcing the laws relating to every river, harbour or port,

quarantine, immigration, fisheries, territorial sea, continental

shelf, exclusive economic and fisheries zone and narcotic and

psychotropic substances (Section 208 A (3)). Among the laws

which fall for enforcement by the Coast Guard are the

Passengers Act; Transport and Harbours Act; River Navigation

Act; Maritime Boundaries Act; Narcotic Drugs and Psychotropic

Substances (Control) Act, etc. (see Third Schedule to the Defence

(Amendment) Act).

The Coast Guard has only one vessel which can sail on the

high seas i.e., the flagship Essequibo, and four smaller vessels,

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and suffers from a one-third manpower deficit. In light of the fact

that the Coast Guard is now being relied upon to be the primary

maritime enforcer of all laws, the Commission strongly

recommends that the Coast Guard should be enhanced both

qualitatively and quantitatively in terms of vessels, equipment

and trained manpower.

Members of the Coast Guard are statutorily empowered to

stop, search and detain vessels and persons engaged, or

suspected to be engaged, in unlawful acts as far as the limits of

the fishery and economic zone i.e., 200 miles out at sea. The

Coast Guard cannot satisfactorily fulfil its statutory functions and

duties without an adequate number of vessels, up-to-date

surveillance equipment and trained personnel. The current

capability of the Coast Guard renders it unequal to its

monumental task and, although the Coast Guard has claimed

that it is satisfactorily fulfilling its statutory mandate, such a

claim is considered to be relative to its existing resources.

Even though members of the GDF on land operations

may not be conferred with powers of arrest, seizure and

detention similar to those of the Police, it is clear that members

of the Coast Guard do have such powers of arrest and detention.

They should, therefore, be specially trained and instructed in the

lawful exercise of those powers.

The Coast Guard has been engaged largely, though not

exclusively, in protecting the country’s fishery zone from

exploitation by unauthorised foreign predators and, so far, apart

from the CGX incident, there has been no serious threat posed to

the integrity of Guyana’s territorial sea.

In order to fulfil its statutory mandate under section 208,

the Coast Guard must make its presence seen and felt not

merely in defence of the territorial sea and the fishery zone but

also in the prevention of smuggling activities, particularly

relating to illicit drugs and firearms. Small but swift vessels

would be effective in the inland waters while larger and powerful

vessels would be better suited to patrolling and overseeing

activities in the open territorial sea and the fishery zone.

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Adequate surveillance and communications equipment would be

particularly useful.

The Commission must point out that it received evidence

that the Pomeroon River, which provides coastal access to and

from Venezuela, is an area where smuggling activities take place

but which is not adequately policed. The Commission

recommends that this area should be given special attention by

the Coast Guard.

The Commission has borne in mind testimony from the

GDF itself that, in spite of many constraints, it has so far

managed to fulfil its defence mandate. If so, the removal of

constraints which do not relate to numerical strength ought to

make the satisfactory fulfilment of its defence mandate

achievable without undue stresses and strains. With the current

human resource recruitment and equipment capitalisation

processes, and with the establishment of a commensurately

improved maintenance system, the GDF would be in a better

position to discharge its statutory mandate.

The Commission has been informed that, despite the fact

that the actual numerical strength of the GDF as a composite

whole matches its authorised strength, the Coast Guard is

understaffed both in the navigation and maintenance

departments. The Commission has already noted with concern

that the Coast Guard has a 35% personnel deficit relevant to its

current needs. This necessarily means that, while the GDF has no

problem in recruiting a sufficient number of persons to its regular

ground forces, it is experiencing serious difficulty in recruiting

and retaining trained personnel for the Coast Guard.

With any increase in its present fleet of vessels, such

personnel shortages are likely to become much more acute. With

its full complement of maritime and maintenance personnel, the

Coast Guard will be in a much better position to discharge both

its military and civil duties with greater effectiveness and

efficiency.

The Commission is aware that, as far as Guyana’s

territorial controversies are concerned, a major difficulty with

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Suriname has been the delimitation of its maritime boundary.

Failure to resolve this dispute over the years resulted in the

forcible expulsion of the CGX Energy petroleum platform from a

position in the Atlantic Ocean well within Guyana’s waters.

The Commission is of the view that, since this issue has not

yet been resolved by peaceful means, the Coast Guard should be

equipped to provide adequate protection to any future petroleum

exploration operations and to fishing and other commercial

activities. The Commission is also aware that the waters between

Guyana and Suriname are a notorious zone for contraband,

piracy and illegal immigration (or ‘backtracking’) activities. The

Commission recommends that the Coast Guard should also be

deployed to the Corentyne area to suppress smuggling.

The Commission is aware, too, that the Government of

Guyana has embarked on a course of action which will result in

the arbitral settlement of the Guyana-Suriname boundary

controversy. Up to and beyond this point, the maritime units,

rather than the ground forces, will be required to define

aggression and maintain the territorial integrity of Guyana.

The Commission is further aware that the Government of

Guyana has stated its reservations with respect to the Treaty

between the Republic of Trinidad and Tobago and the Republic of

Venezuela on the Delimitation of Marine and Sub-Marine Areas

(April 1990) in which both signatory states sought to protect

their own interests to the prejudice of those of Guyana and

Barbados, the Exclusive Economic Zones (EEZ) of which intersect

those of Venezuela and Trinidad and Tobago, respectively.

Guyana and Barbados entered into an Exclusive Economic Zone

Co-operation Treaty (December 2003) undertaking to work

together for the protection and exploitation of their EEZ.

Given the extensive powers of the Coast Guard under

section 208A above, the Commission considers that, at present,

the Coast Guard is the only agency that can effectively enforce

the laws of Guyana in the country’s maritime space and protect

Guyana’s national interest with respect to these international

agreements.

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In this regard, the Commission was disappointed that a

presentation on the maritime challenge and the Coast Guard’s

capability did not constitute a central feature of the GDF’s

presentation and, in effect, did not enjoy the prominence or

emphasis shown to the ground forces.

The Commission is of the considered opinion that the

present international security situation in which Guyana finds

itself warrants greater emphasis on the Coast Guard relative to

the ground forces, and the GDF should consider

reconceptualising its functions and operations to give effect to

this new strategic reality. In specific terms, the Commission

strongly recommends that the Coast Guard should be provided

with the following:

(1) Adequate (manpower) strength as quickly as possible,

but certainly within the present calendar year (2004).

(2) Adequate funds to permit the financing of regular, long-

range maritime patrols.

(3) Adequate inshore patrol vessels to enable it to suppress

illegal fishing, narcotics-trafficking, gun-running, illegal

migration and contraband.

(4) Adequate aerial and radar surveillance resources.

The Commission recommends that, in light of the changing

maritime scenario since 2000, the Guyana Defence Board

seriously review the support given to the Coast Guard and

urgently make plans for improvement.

Reserve Force

The Commission sees the need to emphasise that the

reserve Force of the GDF should not be overlooked or neglected.

The reserve Force should always be sufficiently trained and kept

at full strength to provide ready support to the regular Force

whenever the need arises. It is always beneficial that the

reservists should be recruited regionally, especially from those

regions in which the regular Force cannot maintain a ready or

regular presence. Since all reservists are members of the GDF,

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the reservists can serve as its military eyes and ears as they are

in duty bound to the Force’s statutory mandates.

While the Commission does not support the GDF’s

recommendation that an additional regular infantry battalion be

created, it recommends for consideration that the reserve

capacity of the GDF be increased in numerical strength. Given

the small size of the Guyanese population relative to its

geographic area, the GDF can have a large and wide military

presence only through the participation of the general population

itself. This points in the direction of increasing the reserve Force

rather than the regular Force which would mean that the GDF

would have a presence and support within the population itself.

In a separate memorandum submitted by the GDF at the

request of the Commission, it was pointed out that it was the

policy of the Government “to have a small versatile regular Force

with a strong Reserve to supplement it”. The Commission noted

that, contrary to that stated policy, the reserve Force was both

small and weak relative to the regular Force. In three regions

(Regions 7, 8 and 9) there was no reserve and in one Region

(Region 1), there was only one platoon, equivalent perhaps, to

one third of the desired strength. Even the most populous

regions (e.g., Regions 2 and 3, and Regions 4 and 5,

respectively) shared companies, and only Regions 6 and 10

seemed to be represented by full strength units. Although the

GDF did not present actual numbers for reservists, the

memorandum indicated that the reserve Force was significantly

smaller than the regular Force.

The Commission recommends that there should be a

separate establishment and organisation structure of the reserve

Force, similar to that of the regular Force, showing the strengths

and detailed descriptions of the various units.

As far as the functions and operations of the reserve Force

were concerned, the Commission learnt that its main task is to

augment the strength of troops of the regular Force and for first

response to emergencies. The Commission also learnt that the

continuity of service and efficiency of the performance of

members of the reserve Force were affected by their job

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commitments and the attraction to other activities for which they

were better paid.

The GDF complained that its ability to mobilise satisfactory

levels of manpower in the Regions was affected by

transportation and communication difficulties and the

unavailability of equipment. On the basis of the evidence

presented, the Commission is of the view that the reserve Force

has not received the level of attention, organisation and

administration it requires. The Commission therefore supports

the recommendations proposed by the GDF as follows:

(1) There should be an increase in the stipend for

reservists to attend weekend training.



(3) Regulations should be promulgated to protect the

jobs of reservists when they are called out on duty or

training.

(4) The Drill Halls [training centres] in Regions 3, 7, 8

and 9, should be reactivated and those in other

regions should be improved.

(5) There should be a special budget for the reserve

Force to help it to perform effectively.

The GDF did not offer an explanation as to why these

recommendations had not been acted on.

The Commission emphasises that its understanding of

section 4 of the Defence Act is that the regular Force and reserve

Force should stand on a similar, if not equal, footing. The

functioning of the GDF should, therefore, give effect to this

principle. The Commission therefore recommends that the

Guyana Defence Board give serious consideration to the present

state of organisation and administration of the reserve Force and

make concrete plans for its improvement.

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Air Corps

The Commission recognises the crucial importance of an

aerial surveillance capability in the GDF. The greater part of the

vast expanse of Guyana is unpopulated and cannot be patrolled

by infantry or even an expanded reserve Force. Such a situation

speaks loudly for aerial surveillance capacity not merely for the

protection of territorial integrity but also in providing assistance

to the Guyana Police Force in internal security operations when

so requested. The Commission recommends that the aerial

surveillance capacity of the GDF be greatly improved through

recapitalisation efforts. Such efforts should include the

completion of repairs to its helicopter (which is the only one in

Guyana) and one of its two Skyvans which currently needs

replacement of some of its component parts.

Deficiencies similar to those which affect the Coast Guard

also affect the Air Corps. The latter has about 50% of the number

of aircraft pilots it requires and needs more aircraft mechanics

and engineers.

The Commission received evidence that contraband

activities were prevalent along Guyana’s three land borders with

Brazil, Suriname and Venezuela, respectively, and along the

coastline. Conscious of the fact that the country’s small

population and limited financial resources could not provide

adequate occupation of, or protection for, its vulnerable borders,

the Commission is of the view that the Air Corps should be

assisted in a more concrete manner to conduct routine patrols in


respectively.

In this regard, the Commission is of the view that serious

attention should be given to the problems of staffing, tasking,

training and equipment of the Air Corps. In particular, the

Commission recommends that the following measures be

considered by the Guyana Defence Board:

(a) Adequate arrangements be made for the recruitment,

local and overseas training of pilots and engineers, and

retention in service of all skilled personnel.

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(b) Increased operational employment of aviation resources

in coastal, maritime and border surveillance.

(c) Acquisition of reconnaissance/surveillance aircraft.

The Commission recommends that any resulting benefits

to the Force from employing the Air Corps as a revenue earning

arm of the Force should be compared with the benefits likely to

accrue to the country from the interdiction of contraband

activities on the country’s border and the detection of illegal

fishing and other violations of its maritime zone.

Public order

The Commission noted and recognised that section 5 of the

Defence Act imposes upon the GDF the civic duty of “maintaining

order in Guyana”, but omits to confer on its members the

coercive public law powers of arrest, detention and interrogation.

It must be assumed that such a significant omission by

Parliament was deliberate and not inadvertent. A distinction has

to be drawn therefore, between a duty of “maintaining order”

and a duty of enforcing public order laws.

It does appear that Parliament intended that the GDF

should be charged with a public duty of maintaining public order

but should not be empowered with, or be responsible for,

enforcing public law in the criminal courts. In this regard, it is

instructive that among the core functions of the Guyana Police

Force is “the preservation of law and order” (section 3(2) of the

Police Act) while section 5 of the Defence Act speaks of the

“maintenance of order” only. Members of the GDF, as soldiers,

are not expected to be functionally acquainted with public order

laws and, therefore, have not been empowered to act in the

enforcement of such laws. They are, however, under a statutory

duty to act in preservation of public order.

When specifically asked by the Commission whether it was

desirable that its members be conferred with enabling powers of

arrest and detention in furtherance of the performance of their

statutory duty of “maintaining order,” the GDF responded with

an unequivocal negative. In the opinion of the GDF, such civil

powers are undesirable since soldiers are not trained to exercise

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them, as are their Police counterparts who have the public duty

of enforcing the criminal laws. It is clear to the Commission that,

in so far as its internal security function of “maintaining order” is

concerned, the GDF is not trained to play a role in “maintaining

order”, except in support of the GPF.

Even though the Defence Act does not prescribe that the

GDF should perform its statutory duty of “maintaining order” in

Guyana in conjunction with, or in support of, the GPF (or any

other relevant law enforcement agency), the absence of powers

of arrest and detention renders it prudent that it should generally

not seek to perform this civil duty otherwise than in support of,

or at least in conjunction with, the GPF.

In the recent episodes of public disorder on the East Coast

of Demerara, the GDF was deployed to perform its statutory duty

of maintaining internal public order. The GDF was criticised for

failing to enforce the criminal law (i.e., to arrest and detain)

against criminal elements. Society, it appears, could not fathom

such omissions on the part of the GDF. It should be known,

however, that the GDF enjoys no more than the private common

law power of civilians to arrest and, perhaps, it was in the

purported pursuance of this power that members of the GDF

claimed to have effected the arrest of the three persons found in

possession of the cache of arms and monitoring equipment at

Good Hope, East Coast Demerara in the latter half of 2002.

From the standpoint of the GDF, its duty was the

maintenance of public order and did not extend to enforcement

of the criminal law. From the point of view of society, the duty of

the GDF as an arm of the State endowed with coercive powers

was not merely to maintain public order but to arrest all those

who were engaged in criminal conduct. Consequently, and

perhaps due to its alleged statutory impotence and doctrinal

assertions, the GDF’s recent operations on the East Coast have

drawn both commendation and condemnation.

Joint operations

The Commission is of the view that, whenever it is deemed

necessary to deploy the GDF to carry out this public function,

there should be joint operations between the GDF and the GPF,

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with the GDF performing the supporting role. In such joint

operations, each Force will complement the other for effective

performance of its respective statutory functions. It is apposite to

note at this point section 18 of the Police Act which provides:

Any member of the Force [Police] may call on any person to assist him if while acting in the execution of his duty, he is resisted or assaulted or is otherwise in need of assistance, and anyone so called on who, without reasonable excuse refuses or neglects to render assistance shall be liable on summary conviction to a fine of nine thousand seven hundred and fifty dollars or to imprisonment for three months.

This section not only empowers, but obligates, any person to

render assistance to a member of the Guyana Police Force if, in

the execution of his duty, such member is assaulted or resisted

or is otherwise in need of assistance and requests the assistance

of such a person. This section is of particular relevance to joint

operations between the GPF and the GDF in the suppression of

internal public disorder since it permits the Police to empower

members of the GDF to become directly involved in preventing

violations of the criminal law by simply calling upon them

whenever the need arises.

Apart from this provision, a similar obligation arises by

virtue of article 32 of the Constitution which makes it the “joint

duty of the state, society and every citizen to combat and

prevent crime and other violations of the law.”

The concept of joint operations between the GPF and the

GDF necessarily involves a pro-active programme, command

structure and training exercises to reduce, as far as possible,

operational hiccups and complications. In such operations, there

must be planned co-ordination and well-practised execution. In

view of the fact that the maintenance of public order and

enforcement of public order laws are core functions of the Police

Force, it is recommended that overall command in such

operations continue to reside in a senior officer of the Police

Force.

For the removal of lingering perceptions of statutory

impotence, the Commission recommends that members of the

GDF be conferred with powers of arrest and detention limited to

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the occasions such as may be necessary for the express purpose

of maintaining order thereby giving effect to the wisdom and

foresight underlying the statutory imposition on the GDF of a


Recruitment

The GDF informed the Commission that, given the present

levels of salaried and non-salaried benefits, it is decidedly

disadvantaged in the labour market in its efforts not merely to

recruit, but also to retain, qualified Coast Guard and Air Corps

personnel. It is losing out to public and private sector

entrepreneurial organisations which have the advantage of

higher salaries and non-salaried benefits.

The GDF found that apart from external recruitment, even

though it embarked on training programmes to create its own

trained pool of personnel to meet its needs, it eventually loses

the services of such personnel to the lure of higher salaries and

better non-salaried benefits of external agencies.

Quite apart from a straight application of the economic

principle of supply and demand, a significant factor justifies a

discriminatory wages and benefits package in favour of the Coast

Guard and Air Corps. Members of the Coast Guard and Air Corps

have to receive military training before they can have specialised

maritime and aviation training. They should be remunerated on

the basis of their dual training and, therefore, should have a

different wages and non-salaried allowances structure which

should reduce the disadvantage of the GDF in the labour market

in its efforts to recruit, train and retain Coast Guard and Air Corps

personnel.

Training

The Commission was concerned that, given its importance

to the “Operational efficiency and effectiveness of the Force”,

training was not the subject of a major presentation and did not

form a significant section of the written submission.

In light of the recent conduct of ‘joint operations’ between

the GDF and GPF, particularly on the East Coast of Demerara, the

Commission is of the view that it ought to have been apparent to

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the GDF that there should be regular, planned and intensive

training between commanders and units of the two Forces which

are likely to work together, from time to time, in the conduct of

internal security operations.

The Commission called attention to the responsibility of the

GDF under section 5 of the Defence Act which includes the

“maintenance of order in Guyana”. This should be regarded as a

normal obligation and, given the GPF’s pre-eminent responsibility

for public order, necessitates a regular pattern of joint training

between the GDF and GPF. The Commission was concerned that

neither the GDF nor the GPF saw it fit to pay much attention to

this matter in their presentations. This inattention may have led

to the perception that one, or the other, or both were unwilling to

perform the statutory duties required of them in the recent spate

of public disorder or that there might have been no executive

direction to that effect.

The GDF expressed its satisfaction that it has been able to

meet most of its manpower needs by recruitment. In fact, the

actual strength stated was just 20 below the authorised strength.

No evidence was presented, however, on the placement of

personnel or the appropriateness of training to the employment

of members of the Force.

The GDF painted a complex picture of military operations

which included countering threats of “terrorism, drug-trafficking,

illicit arms trafficking, uncontrolled refugee migration, trafficking

in human-beings etc.”

In the view of the Commission, transnational threats such

as these also require regular, inter-service and inter-agency

training. Indeed, the Coast Guard complained that some organs

which had responsibility for such coordination had ceased to

function at the governmental level. The Commission was

concerned that, if there was a perception that the threats to

national security had changed, there should be a commensurate

change in training by the Force to counter the new threats.

The Commission recommends that the Guyana Defence

Board give serious consideration to the role of the Guyana

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Defence Force, both alongside the Guyana Police Force and with

other civilian agencies and make concrete plans for joint training.

Recommendations

The Commission is of the considered opinion that the

present international security situation in which Guyana finds

itself warrants greater emphasis on the Coast Guard relative to

the ground forces, and the GDF should consider re-

conceptualising its functions and operations to give effect to this

new strategic reality. With regard to the “Functions and

Operations” of the GDF, therefore, the Commission recommends

the following with respect to:

Coast Guard

(72) Adequate increase in manpower should be achieved, if

possible, within the present calendar year (2004); and

the Defence Board should seriously review the support

given to the Coast Guard.

(73) Adequate funds should be granted to permit the

financing of regular, long-range maritime patrols.

(74) Adequate inshore patrol vessels should be acquired to

enable the suppression of illegal fishing, narcotics

trafficking, gun-running, illegal migration and contraband

smuggling. There should be a presence in the Corentyne

area, in particular, to suppress smuggling.

(75) Adequate aerial and radar surveillance resources should

be acquired.

Reserve Force

(76) There should be an increase in the stipend for reservists

to attend periodic training.



(78) Regulations should be promulgated to protect the jobs of

reservists when they are called out on duty or training.

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(79) The Drill Halls [training centres] in Regions 3, 7, 8 and 9,

should be reactivated and those in other regions should

be improved.

(80) There should be a special budget to help it to perform

effectively.

(81) The Guyana Defence Board should create a separate

establishment and organisation structure, similar to that

of the regular Force, showing the strengths and detailed

descriptions of the various units.

Air Corps

(82) The aerial surveillance capacity of the GDF should be

greatly improved through recapitalisation efforts. Such

efforts should include the completion of repairs to its

helicopter (which is the only one in Guyana) and one of

its two Skyvans which currently needs overhauling.

(83) Adequate arrangements should be made for recruitment

as well as local and overseas training of pilots and

engineers, and retention in service of all skilled

personnel.

(84) There should be increased operational employment of

aviation resources in coastal, maritime and border

surveillance and the Air Corps should be assisted in a

more concrete manner to conduct routine patrols in


respectively.

(85) Reconnaissance/surveillance aircraft should be acquired.

(86) Any resulting benefits to the Force from employing the

Air Corps as a revenue earning arm of the Force should

be compared with the benefits likely to accrue to the

country from the interdiction of contraband activities on

the country’s border and the detection of illegal fishing

and other violations of its maritime zone.

Joint Operations

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(87) The Guyana Defence Board should give serious

consideration to the role of the Guyana Defence Force in

maintaining internal order with the Guyana Police Force

and other civilian agencies and make concrete plans for

their joint training.

(88) Members of the GDF be should be conferred with powers

of arrest and detention limited to the occasions such as

may be necessary for the express purpose of maintaining

order thereby giving effect to the wisdom and foresight

underlying the statutory imposition on the GDF of a


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composition and structure of the GDF.

The Defence Force, as previously mentioned, consists of a

regular Force and a reserve Force (section 5 of the Defence Act)

but the numerical strength of either has not been specified. It

may be that Parliament, in its wisdom, intended that such

matters should be left to executive discretion and the

Commission sees no reason to recommend otherwise.

Guyana Defence Board

Section 9(1) of the Defence Act imposes responsibility for

the command, discipline, administration of, and all other matters

relating to the Force on the Guyana Defence Board (GDB) under

the general authority of the Minister. Section 9(1) prescribes:

There shall be a board to be called the Guyana Defence Board which shall, subject to subsection (2), be responsible under the general authority of the Minister for the command, discipline and administration of, and all other matters relating to, the Force.

The interpretation and ramifications of this provision has

been the subject of extensive review in section 4 of this Report

and there is no need to repeat our findings here. Suffice it to say

that the responsibility of the Defence Board for the command,

discipline and administration of the Force is not imposed as its

own responsibility but rather as part and parcel of the executive

responsibility of the Minister. Section 9(1) does not prescribe

simply that the Defence Board shall be responsible for such

functions but that it shall be responsible “under the general

authority of the Minister.” In effect, by virtue of section 9(1), the

Defence Board is the mandatory statutory agency by or through

which executive ministerial responsibility is discharged.

This responsibility of the Defence Board under section 9(1)

is “subject to subsection (2)”, which prescribes:

The responsibility of the Defence Board shall not extend to the operational use of the Force, for which

183

use responsibility shall be vested in the Chief-of-Staff subject to the general or special directions of the

Minister.

The Chief-of-Staff who is under, section 169, the officer

vested with command of the Force, is the most appropriate

authority to bear responsibility for this function of the Force.

Though appointed by the President (the Commander-in Chief of

the armed forces of Guyana) who can limit his power of

command by the terms of his appointment, section 9(2) renders

the responsibility of the Chief-of-Staff for the operational use of

the GDF “subject to the general or special directions of the

Minister.” (emphasis added)

The Minister

The Commission noted that since the Defence Act was

promulgated, no President (or Prime Minister) ever assigned

responsibility for defence to a dedicated Minister. This calculated

decision may have much to do with the extensive overall

responsibilities which are statutorily imposed upon the Defence

Board, the member-Chairmanship of the President (formerly

Prime Minister) of that Board, ministerial rather than presidential

control over the operational use of the Force, and the anomalies

which would have been occasioned had a dedicated Minister

been appointed.

In response to the recommendation by the GDF that a

substantive Minister/Ministry be appointed/created, in the course

of the oral presentation of the Force, the Commission was

obliged to draw attention to article 107 of the Constitution which

provides:

The President may assign to any Minister responsibility for any business of the Government of Guyana, including the administration of any department of Government, and shall be charged with all responsibility not assigned to any Minister; in respect of responsibility so charged, the President shall appoint a Minister or Parliamentary Secretary to be answerable to the National Assembly therefor on his or her behalf. (emphasis added)

Provided that the authority to exercise any power or discharge any duty that is imposed by any provision of this Constitution or by any other law on

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any person or authority shall not be conferred by this article. (emphasis added)

Thus, where there is no specific assignment of the Defence

portfolio, it is clear that the President is the de jure Minister of

Defence. However, any assignment of responsibility by the

President under article 107 is not intended to, and cannot

override or detract from, any responsibility imposed by law (or

the Constitution) upon any person or authority. Therefore, the

responsibility imposed by section 9(1) upon the Defence Board

could not be transferred to a Minister even if the President were

to assign responsibility for defence to him or her. Such a

responsibility would still remain with the Defence Board under

the proviso to article 107.

While the Defence Board has been created to exercise

executive function, inter alia, to formulate and issue policy

directives to the Chief of Staff, the implementation of these

directives is a function of the Force itself and would remain so

whether or not a Ministry of Defence is created but, as stated

elsewhere, the Chief of Staff is accountable to the Board, except,

with respect to operational use of the Force, for which the

Minister has specific overall responsibility. These functions would

remain with the Defence Board even if a dedicated Ministry of

Defence were created. Nor does the need to formulate

regulations persuade the Commission that such a Ministry is

required.

The Commission recognises that this is already a function

of the Defence Board and not of the Minister, under section 212

of the Defence Act. Further, under the proviso to article 107 of

the Constitution, such a function would remain with the Defence

Board even if a dedicated Ministry of Defence were to be

created. As provided in section 212:

Subject to the foregoing provisions of this Act, the Defence Board may make regulations for the better carrying out of the provisions of this Act and generally for the good government and organization of the Force and for providing for matters required by this Act to be prescribed and without prejudice to the generality of the foregoing, such regulations may make provisions with respect to any of the following matters…. (emphasis added)

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If, perchance, there is a perceived need for regulations

relating to any of the matters mentioned in section 212, the

Chief of Staff as the commander of the Force should so advise

the Defence Board which could formulate the

Regulations or direct, by delegation or otherwise, that this be

done.

The Commission has been advised that, apart from the

designated statutory members of the Defence Board, i.e., the

President, the Prime Minister, the Minister of Home Affairs and

the Chief of Staff, the three other members who have been

appointed by the “Minister” to be members of the Defence Board

are the Attorney General and Minister of Legal Affairs, the

Minister of Foreign Affairs and the Commissioner of Police.

The Secretary to the Defence Board is the Head of the

Presidential Secretariat or such person as the Chairman of the

Defence Board (i.e., the President) may nominate to perform the

duties of Secretary at any meeting of the Board in the event of

the inability of the Permanent Secretary to perform his or her

secretarial duties (section 12).

The statutory requirement that the Head of the Presidential

Secretariat should ordinarily be the Secretary to the Board tends

to indicate parliamentary understanding that the nature of that

responsibility is more becoming that of the Office of the

President than that of a Ministry.

Since the Chairman of the Defence Board is the President,

it would seem to justify his retention of the Defence Portfolio,

having regard to his power to assign responsibility for

parliamentary representation of the Force under article 107 of

the Constitution.

The Commission has noted that section 16(1) of the

Defence Act empowers the “Minister”, rather than the Defence

Board, to make regulations by which Officers of the Force are

governed. Section 16(1) provides:

Subject to this Act, the Minister may make regulations for the better carrying out of the provisions of this Part and, without prejudice to the generality of the foregoing, such

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regulations may make provisions with respect to all or any of the following matters, that is to say the commissioning of officers, their terms of service, appointment, transfer, promotion, retirement, resignation, removal from office and such other matters concerning officers as may seem to him necessary.

While these Regulations relate to officers only, it is the

Board which, in the discharge of its responsibility for the

command, discipline and administration of and all other matters

relating to the Force, under the general authority of the

“Minister” (President), is required to make all other regulations

as described earlier.

In its presentation, the Force argued for the promulgation

of a National Defence Strategy and was firmly of the view that

such a responsibility should fall on the Defence Board in its

collective wisdom rather than on the President, whether as

President or as Minister holding responsibility for Defence. Since

the Defence Board has the statutory authority to make its own

rules for the performance of its duties and even for consulting

with persons other than its own members under section 12(1),

the Commission recommends that this important strategic

function should be undertaken by the Defence Board as a matter

of priority.

Organisation Structure

The Force emphasised that, in addition to ‘traditional’

territorial security and border problems, there were what it called

‘non-traditional’ threats which do not respect national borders

and often arise from non-state actors such as terrorists and

criminal organisations. These threats include “terrorism, drug-

trafficking, illicit arms trafficking, uncontrolled refugee migration,

trafficking in human beings, particularly women and children,

and other international crimes.”

In reviewing its organisation structure, the Force pointed

out that “there has been a gradual increase in tasking beyond

our resource capabilities”. It presented a case mainly for an

increase in the strength of the Force by an additional infantry

battalion, and a strengthened Artillery Corps and Military Police

Corps. Further, the Force recommended an increase in the

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authorised establishment from 2,650 to 3,450, i.e., 823 or about

31 per cent above the present level.

The Commission is of the view that, given the current

security assessment and the reported increase in tasking, careful

consideration should indeed be given to increasing the human

resource base of the Force. However, it is less inclined to accept

that the Force’s proposals for the employment and placement of

such additional troops well within national borders reflect an

appropriate response to the challenge which was outlined in its

presentation. The Commission is of the view that, to the extent

that the threats are perceived as trans-border issues, the thrust

of the military response should be, principally, to allocate military

resources to the most vulnerable areas, i.e., the borders.

Guyana’s coastline and borders are in excess of 2,500 km and

greater emphasis must be placed by the Force on guaranteeing

the security of its more vulnerable areas.

The Commission is unable, on the available evidence, to

determine whether the proposal to increase the strength of the

Force by 823 members is justified. Nor has the Commission

received information about the likely cost of such an increase.

The Commission is satisfied, however, that in relating response

to threat, the Force’s proposals should engage the Board’s

policy- makers in greater focus on external operations, and the

air and maritime units to enable the Force to perform its tasks

with greater efficiency.

Recommendations

With regard to the ‘Composition and Structure’ of the GDF,

the Commission recommends the following:

(89) There should be improved and regular aerial patrols and

surveillance by the Air Corps.

(90) There should also be improved and regular maritime

patrols and surveillance by the Coast Guard.

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(91) The strength of the reserve Force should be increased in

all regions which possess coastlines or international

borders; that is to say, all regions except the Upper

Demerara- Berbice Region.

(92) The Defence Board should adopt and treat as a priority

the GDF’s proposal of outlining a National Defence

Strategy.

(93) The Chief of Staff should submit draft regulations for the

consideration of the Defence Board.

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Section 3:Ethnic Balance


methods and processes of achieving greater ethnic

balance within the GDF.

Ratio

The authorised strength of the GDF is 2,650 but the actual

strength is 2,630 which is 20 short of the authorised figure. Of

this figure Afro-Guyanese comprise 80% while Indo-Guyanese

comprise only 8%. The remaining 12% are Guyanese of other

races.

Although Indo-Guyanese constitute approximately 48%,

and Afro-Guyanese 36%, of the Guyanese population the latter

outnumber the former in the GDF by a ratio of roughly 10 to 1.

Thus, the assertion is heard that Indo-Guyanese are under-

represented in the GDF by about 82%. On the other hand, Afro-

Guyanese are over-represented by about 122% while other

ethnic groups are cumulatively under-represented by about 25%.

Clearly, the argument that there should be a reasonable

relationship between ethnic composition of the population and

ethnic representation in the GDF raises the issue of the

formulation and implementation of appropriate policies.

Satisfactorily resolving this matter however, is not without its

problems. In seeking to correct any perceived imbalance

between the two sets of factors, it may be questioned whether it

is desirable to fix an absolute standard of ethnic participation in

the GDF.

While Guyanese society as a whole does not seem to

entertain ethnic insecurity fears with regard to the operational

use of the GDF to the same extent as they do with regard to the

GPF (i.e., on account of its ethnic composition) it is nevertheless

desirable that the GDF be re-configured so as not to cause an

increase, but rather a diminution, in whatever fears exist.

The historical rivalry and conflict between Indo-Guyanese

and Afro-Guyanese and their undoubted negative consequences

point to the need for national institutions such as the GDF to be

more balanced in their composition and functioning, moreso, in

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the case of the GDF since it is invested with the coercive function

of defence of Guyana and with maintaining order. Thus, the

ethnic imbalance in the GDF has given rise to some ethnic

insecurity fear among sections of the Indo-Guyanese population.

This problem was highlighted by the Rise Organise and

Rebuild (ROAR) Guyana Movement which, in testimony before

the Commission, lamented the failure of Indo-Guyanese to join

the GDF and to make a meaningful contribution to national

security relative to their demographic strength. The GDF, too, in

its presentation acknowledged the existence of this problem

when it stated that:

At any rate, the question of ethnic balance in the GDF is a reality which needs to be addressed. It is reasonable to assume that ethnic balance in the military is achievable if the ethnic groups that perceive that their safety and security are being threatened by the present composition of the military use the opportunity to join the ranks of the military via the open-door policy of the Force.

Policy

The GDF, mindful of the fact that the ethnic imbalance in

its ranks might be responsible for the perception that there is

discrimination against non-Afro Guyanese, defended its

recruitment policy over the past 38 years on the bases that it

“has been open, fair and non-discriminatory” and that “its equal

opportunity policy is designed to provide equal opportunity for all

personnel within an environment free from all discrimination,

harassment and intimidation. Further, that Indo-Guyanese have

largely kept themselves out of the GDF.”

The GDF compared and contrasted the ethnic imbalances

of the GDF with the ethnic imbalances of other armies in Uganda,

Rwanda, Burundi and Sudan and concluded that, unlike those of

the GDF, the imbalances of those foreign armies resulted from

deliberate ethnic discrimination in recruiting certain ethnic

groups over others, with the result that their actions in internal

conflicts were ethnically discriminatory and repressive. In

contrasting the GDF with those armies, the GDF stated:

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The Guyana situation is different. Even though the GDF is a coercive arm of the government, its record would attest to its professional conduct and cannot be categorized as a repressive force. This does not remove the perception that the present ethnic configuration of the GDF makes it unresponsive to the security needs of the minority ethnic groups in the military. It is true that ethnic fears appear to be more perceived than real. It is also true that there is no force readily available for ethnic integration. What is not true is the perception in the external community that the GDF does not allow other ethnic groups to be part of its membership.

The GDF, while resolutely denying any policy of ethnic

discrimination in its recruitment and retention policy, forthrightly

accepted that its ethnic composition has given rise to ethnic

insecurity fears which, even though unwarranted, have not been

dissipated or removed by its claimed professional record.

Perception can be as potent in its consequences as reality which

cannot be readily assuaged. Such fears, even if mere perceptions

and not based on reality, cannot be adequately addressed by

mere professionalism but also by a recruitment system which is

designed to attract cadres of recruits in sufficient numbers from

all ethnic groups to build the image of the GDF as a national

organisation reflective of the ethnic composition of this multi-

racial country. It is clear that the existing recruitment system

and practices of the GDF have failed to attract Indo-Guyanese in

sufficient numbers and must therefore be improved.

Since there is no, or insufficient, evidence that those

responsible for recruitment have shown the requisite vision or

initiative to encourage and/or devise a plan likely or calculated to

persuade Indo-Guyanese in larger proportions to enlist, the

system must therefore be re-designed and re-formulated.

Recruitment

The Commission does not find the present recruitment

system exclusionary in its objective. The Commission, however,

finds that, given the fact that the recruitment data have revealed

that, “among the various ethnic groups offering to enlist in the

GDF, while the Africans and to a lesser extent the Amerindians

were consistently higher, the reverse is true for East Indians and

other ethnic groups”, positive efforts should be made to identify

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and overcome, as far as possible within the constitutional

prohibitions of article 149, the distractions which have hitherto

disinclined Indo-Guyanese in particular from seeking enlistment

in the GDF.

While the recruitment and retention system which obtains

cannot be faulted as exclusionary, the GDF should be concerned

that Indo-Guyanese, who constitute about 48% of the population,

consistently demonstrate reluctance to enlist. This suggests the

need for a more pro-active inclusionary approach, rather than a

merely non-exclusionary approach.

It is obvious that, while Indo-Guyanese remain disinclined

to enlist, the GDF is being denied a much larger pool of human

resources from which to select many qualified and likely suitable

recruits. No doubt, despite the fact that GDF has claimed so far

that it has satisfactorily fulfilled its statutory mandates, it has

done so despite the consistent unavailability of a larger pool of

human resources from which recruits of the highest quality could

have been selected on the basis of competitive merit.

It is, to the credit of the training programmes of the GDF

that it is able to satisfactorily fulfil its mandates although it only

has access to a restricted pool of human resources from which to

recruit. Nevertheless, it is in the interest of the GDF as a national

institution having coercive public law functions that it should

seek to have available to it a full and nationally representative

pool of human resources so that not only the best can be chosen

but also its image as a truly national institution can be improved

and misperceptions of ethnic insecurity can be allayed.

The GDF has taken the position that, unlike foreign armies

which have practised a policy of ethnic discrimination in

recruitment, the task of re-configuring the GDF to achieve some

acceptable level of ethnic balance without the necessity of

conscription, is achievable. It is the Commission’s view that

difficulties notwithstanding, the GDF is sympathetic to the need

for reform and change. In this context, the GDF candidly made

two significant admissions as follows:

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(1) At any rate, the question of ethnic balance in the GDF is a reality which needs to be addressed.

and

(2) Admittedly, the GDF policy, allowing for all ethnic groups to join its ranks is not well known and should be widely advertised as part of allaying any perceived security fears.

The Commission commends the GDF for its recognition of the

limitations of its recruitment policy and endorses its perception

of the need for public edification as an important aspect of this

policy. However, the Commission takes the view that if such

perceived ethnic insecurity fears exist principally among the

Indo-Guyanese population and have been significantly

contributory to their general disinclination to join the GDF, it

would be prudent to target Indo-Guyanese principally.

Systems

The GDF has also conceded that there is an external

perception that the bill of fare (menu) offered by the GDF does

not adequately cater to a multi-ethnic membership. If such a

perception is not founded on reality then it is a misperception

which it behoves the GDF to effectively dispel by public

information principally in the Indo-Guyanese communities. The

same applies to religious practices in respect of which it must be

the public understanding that membership of the GDF does not

stand in the way of freedom of religion and religious practices.

While the GDF has drawn the attention of the Commission

to the possibilities that the three-year minimum contractual

service period may be too long for some ethnic groups and the

long separation from nuclear family may prove too burdensome

and saddle the administration with problems of desertion, the

Commission has serious doubts whether any compromise or

concession can be made on such issues without adversely

affecting military competence and efficiency. Certain conditions

of service are integral to military administration and operations

and cannot be sacrificed on the altar of social convenience.

The GDF has also advanced the notion of the loss of

cultural identity as a possible reason or as one of the critical

factors which can affect efforts to ethnically balance the GDF.

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The Commission is of the view, however, that this is a

sociological phenomenon which itself is the result of the ethnic

imbalance which now besets the GDF. Greater ethnic diversity

may therefore itself be a solution to the loss of cultural identity.

The GDF also emphasised differences in the socialisation of

racial groups in Guyana as among the factors negatively

impacting the ability to achieve the objective of ethnic balance

among its personnel. While this may well be a contributory

factor, the Commission is of the view that the GDF should take all

necessary measures to ensure that any such obstacle is removed

or mitigated.

In this context, the GDF should initiate programmes geared

towards promoting camaraderie, strong esprit de corps and

professional values among its rank and file. The Force should

take cultural practices into account to the extent that these

practices would not allow of any unfavourable treatment among

the ethnic groupings.

Discrimination

The Commission detected some reluctance on the part of

the GDF in paying particular attention to the Indo-Guyanese in its

recruitment efforts, notwithstanding its recognition of a

disinclination on the part of Indo-Guyanese to offer their services

to the GDF. In this respect, the GDF seems to be of the view that

any special effort aimed at attracting Indo-Guyanese applicants

would violate article 149 of the Constitution which proscribes

ethnic discrimination. Such a view might well have hitherto been

responsible for the insufficiency of positive efforts to procure

Indo-Guyanese applicants. It is the Commission’s view that such

special efforts e.g., those aimed at removing whatever

misperceptions may exist generally in the Indo-Guyanese

mindset and therefore must necessarily be directed at the Indo-

Guyanese communities, would not constitute ethnic

discrimination in favour of Indo-Guyanese or against another

ethnic group.

Article 149 (2) of the Constitution states:

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In this article the expression “discriminatory” means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place of origin, political opinions, colour or creed whereby persons of one such description are subject to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not afforded to persons of another such description. (emphasis added)

Efforts directed at removing misperceptions from the Indo-

Guyanese mindset to nullify their disinclination to join the GDF

cannot be viewed as a privilege or advantage accorded to Indo-

Guyanese (or any other ethnic group). Nor can such efforts

subject any other ethnic group to any disability or restriction.

Such efforts are directed to the inclusion of Indo-Guyanese into

the GDF on the basis of merit and not to the exclusion of any

other ethnic group on the basis of race.

The GDF has seen the need for intensified efforts in the

various regions in conducting recruitment. The Commission

wishes to emphasise that the problem is not recruitment per se

but the creation of a pool of applicants among whom (having

regard to the demographic strength of the Indo-Guyanese

population) there may be Indo-Guyanese applicants in particular.

While all regions should be targeted to attract applicants for

enlistment into the GDF, the Indo-Guyanese communities will

require intensified efforts to achieve a satisfactory level of

response from them.

The GDF complained that their current salary levels are too

restrictive in comparison with those of major private industries.

They recommended that their levels be made more competitive

with those of other major public and private sector entities. While

the Commission agrees in principle with such a recommendation

to the extent that such entities vie with the GDF for relevant

qualified personnel, the Commission is disinclined to accept that

the implementation of such a recommendation would have more

than a remote relevance to the issue of ethnic balance in the

GDF.

The actual strength of the GDF with 80% Afro-Guyanese

membership approximates its authorised strength and the

Commission has no evidential basis for finding that such private

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and public sector entities generally discriminate against Afro-

Guyanese in favour of Indo-Guyanese (or other ethnic group) in

their employment policies. Even if it is assumed that some

general level of discrimination does exist, the Commission

cannot reasonably say that it is so high as to have caused such a

disproportionately great imbalance in the ethnic composition of

the GDF, particularly between its Afro-Guyanese and Indo-

Guyanese membership.

The Commission is more inclined to the view that the

ethnic imbalance in the GDF has a much greater causal

relationship with cultural, sociological and psychological factors

than with levels of salaries and allowances. Increases in salaries

and allowances have more to do with the attraction of higher

quality recruits than with attracting personnel of any particular

ethnicity.

Unlike the Guyana Police Force, the GDF does not appear

to be beset with a problem of recruitment as such. However, it

does appear to have an even greater problem than the Guyana

Police Force in attracting Indo-Guyanese in particular to its

membership. The efforts which must be made to attain an

acceptable level of ethnic representation in the GDF must

therefore be more vigorous and directly focused on the

perceived disinclination of Indo-Guyanese to enlist in the GDF.

Recommendations

With regard to ‘Ethnic Balance’ in the GDF the Commission

recommends that:

(94) The GDF should adopt recruitment procedures which

must take into consideration cultural, sociological and

psychological imperatives, designed to attract Indo-

Guyanese in particular to the GDF.

(95) Recruitment procedures should have a particular focus

on the Indo-Guyanese community because of its general

disinclination to join the GDF; these should not be to the

neglect or exclusion of other ethnic groups.

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(96) No person should be excluded from enlisting in the GDF

except on the basis of competitive merit.

(97) The GDF should conduct a public information campaign

designed to remove negative misperceptions about its

recruitment policy with particular focus on Indo-

Guyanese communities.

(98) The public information campaign should highlight the

inclusionary ethnic recruitment and retention policy of

the GDF in terms of:

a) the need for greater Indo-Guyanese

representation in the interest of achieving

greater ethnic balance;

b) the benefits of military training to individuals,

communities and the nation at large;

c) the non-exclusionary measures such as the

provision of a bill of fare which caters to an

ethnically diverse military population;

d) due respect and regard for diverse religious

practices; and

e) secure from all officers including senior ranks

an attitude of respect for lower ranks.

(99) A multi-ethnic recruitment panel should be formed to

exemplify an ethnically diverse GDF and to conduct

recruitment in all the regions.

(100) Recruiting officers should be sensitised to the logistical

problems which can physically impede recruitment in

some regions and the cultural, sociological and

psychological factors which can stand in the way of their

recruitment process, particularly in the Indo-Guyanese

community, and should be willing and able to deal with

such impediments with reasoned persuasion. Promotion

Boards or Panels should also be similarly reflective, if

possible.

(101) Without prejudice to military demands and efficiency,

members of the GDF should not be assigned duties away

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from their nuclear family for unnecessarily prolonged

periods.

(102) The disciplinary codes of the GDF should specifically

proscribe racial harassment and provide for effective

disciplinary sanction.

(103) The Defence Board should consider whether the

minimum period of contractual service can be reduced to

two years without prejudicing the effectiveness of the

GDF as a whole.

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Section 4:Relationship with and Responsibility to

Civilian Authority


relationship with, and responsibility to, civilian authority

by the GDF.

As previously discussed the Guyana Defence Force

(hereinafter referred to as the Force) was created under section

4 of the Defence Act to perform the duties mentioned in section

5.

Section 5 prescribes:

The Force shall be charged with the defence of and maintenance of order in Guyana and with such other duties as may from time to time be defined by the Defence Board.

Duties

It can readily be seen that Parliament imposed the specific

duties of defence and the maintenance of order on the Force and

such additional duties which the Defence Board, a non-military

statutory body, may define from time to time.

The Defence Board was charged with responsibility for the

command, discipline and administration of, and all other matters

relating to the Force under section 9(1) which provides:

There shall be a board to be called the Guyana Defence Board which shall, subject to sub section(2), be responsible under the general authority of the Minister for the command, discipline and administration of, and all other matters relating to the Force.

The Commission considered, at some length, the statutory

composition and responsibilities of the Guyana Defence Board

and the duties of the Minister and the Chief of Staff of the

Guyana Defence Force on the one hand, and the specific

recommendations of the Force at section 17 of its memorandum

on the other.

Since the Force was established under section 4 and the

Defence Board was established under section 9(1), it is clear that

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the Force and the Defence Board are two separate and distinct

legal bodies, with the latter having responsibility for the former,

save for its “operational use”. The Force is a military statutory

creature which cannot function in the manner contemplated by

the Act without, ex necessitate, giving effect to and/or taking

into account the directions/orders/decisions (command) of the

Board. Thus, in essence, the Board may fairly be regarded as

essential to the Force since the responsibility vested in it

“pertains to the very nature of” the Force’s creation, viability and

sustainability.

Under section 2, “the Chief of Staff” means “the officer

appointed by the President under section 169 to have command

of the Force.” Section 169 provides:

The President shall appoint an officer being a member of the Force in whom the command of the Force shall be vested and, subject to the terms of such appointment, such officer shall have command of the Force.

From a joint reading of sections 2 and 169, the President is

empowered to appoint a serving officer from the Force to have

command of the Force (subject to the terms of his appointment)

and that officer, when so appointed by the President, is

statutorily designated “Chief of Staff”.

Authority

The Chief of Staff is the officer who has virtually exclusive

authority for the direction, coordination and control over the

ranks under his command (operational command), whereas, the

Defence Board bears responsibility for the command, discipline

and administration of the Force and all other matters relating to

it subject, of course, to the idiom of section 9(2) which deals

specifically with operational use of the Force (infra). It is

important to note that such responsibility is expressly stated to

be “under the general authority of the Minister” i.e., an executive

responsibility is vested in the Defence Board as if it were the

Minister. Thus, the Chief of Staff, who by section 10 is a member

of the Defence Board but who has no independent executive

authority, is answerable directly to the Board for the manner in

which he exercises his authority in commanding, disciplining and

administering the Force.

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Under section 10(1) of the Defence Act, apart from the

Chief of Staff, the Defence Board is constituted by:

(a) The President, who is its Chairman;

(b) The Prime Minister;

(c) The Minister responsible for Home Affairs; and

(d) Not more than three other persons appointed by the

Minister.

The Commission has been advised that, at present, these other

persons are the Attorney General and Minister of Legal Affairs,

the Minister of Foreign Affairs and the Commissioner of Police.

In the context of the country’s internal and territorial

security situation, it is self-evident why these persons have been

co-opted by the President onto the Board.

Sections 9 and 10 are by no means without structural

difficulties and these can sometimes lead to a lack of clarity in

command and management, but retention by the President of

the Defence portfolio has tended to cushion any anomalous

situation by the exercise of his presidential authority, both

ministerially and as Chairman of the Defence Board.

Ministerial responsibility to the National Assembly for the

manner in which the Chief of Staff commands, disciplines and

administers the GDF and all other matters relating thereto where

there is no substantive Minister, is, in practice, assigned to a

named Minister or a Parliamentary Secretary by the President

under article 107 of the Constitution since any executive

authority not specifically assigned by him is retained by him

under articles 99 and 107 of the Constitution.

The President is not a member of the National Assembly

and, therefore, cannot “speak for” the Force in Parliament. Since

he may exercise that authority “either directly or through officers

subordinate to him” under article 99, it must be assumed that

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any portfolio not specifically assigned is retained by the

President not by inadvertence but for calculated reasons; and

this prerogative attaching to the Presidency ought to be

reviewed or whittled away only in exceptional circumstances.

The Commission also considered the Force’s proposal at

section 19 of its memorandum that a Ministry of Defence be

established and that such a Ministry: “…would be responsible for

implementation of policy directives, facilitating civil-military

relations, parliamentary representation and formulation of

regulations.”

The Commission is aware of the responsibility of the Board for

“the command, discipline and administration of, and all other

matters relating to the Force.” Except for the “operational use of

the Force,” it is clear that the Board is the supreme authority and

the Commission has not been persuaded that grounds exist for

such a high responsibility to be transferred, diluted or lightly set

aside. In any event, statutory functions cannot be transferred to

the Minister without legislative intervention. (See proviso to

article 107 of The Constitution).

The Commission is not convinced, also, that the mere

establishment of a Ministry of Defence, as proposed by the

Force, would necessarily better perform the functions suggested,

particularly since satisfactory mechanisms already exist and are

shared between the Board and the President performing the

functions of Minister. Where there are deficiencies or problems,

their solution seems to be in improving the performance of

existing mechanisms, rather than in proposing the establishment

of new ones.

The Commission has been informed by officers of the

Coast Guard, for example, that certain inter-agency,

governmental coordinating organisations which are essential to

maritime operations, do not function. The Commission also

received evidence of queries by the Auditor General’s

Department and complaints from the public about the conduct of

the Force during the recent spate of criminal violence.

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The Board may feel that it would be inappropriate for the

Force itself to investigate matters such as these. It would,

however, require the most irrefragable testimony for this

Commission to agree to a recommendation which would directly

impinge upon that executive authority reserved by the

Constitution for the President. Apart from this, any such

recourse may, without justification and unwittingly, lead to a

conclusion that the Commission supports any trifling

condemnation of the manner in which the Portfolio is being

administered now, or was in the past, by all previous Presidents.

The recommendation by the Force for a dedicated Minister is,

therefore, not supported by the Commission.

Responsibility

The responsibility of the Defence Board under section 9(1)

is not a responsibility to the Minister but rather “under the

general authority of the Minister. It is both an executive and

administrative responsibility. Therefore, whatever executive

decisions could be made by the Minister in relation to the

command, discipline and administration of the Force “shall” be

made by the Defence Board and, pariter, the Chief of Staff would

have to execute those decisions as if they were made by the

Minister. Since the Defence Board, as a matter of law, makes

those decisions under the general authority of the Minister, it

bears a mandatory executive responsibility in lieu of the Minister.

The words “command”, “discipline” and “administration”

in section 9(1) are all of equal contextual strength and the

authority of the Chief of Staff is exercised under the control and

directions of the Board subject only to the limitation imposed by

section 9(2). Since the responsibility of the Defence Board under

section 9(1) is “subject to subsection (2)” it is axiomatic that

these words of limitation curtail/restrict that responsibility to the

extent that such responsibility is inconsistent with section 9(2).


The responsibility of the Defence Board shall not extend to the operational use of the Force for which use responsibility shall be vested in the Chief-of-Staff subject to the general or special

directions of the Minister. (emphasis added)

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Given that the responsibility of the Defence Board does not

extend to the operational use, of the Force, which is merely one

facet of the notion of “Command”, the Chief of Staff, by section

9(2), is relieved of the obligation of accounting to the Defence

Board for such use of the Force. But that sub-section does not

relieve him from executive control and accountability. This is

precisely why Parliament has vested responsibility for

operational use in the Chief-of-Staff and, at the same time, has

made such responsibility “subject to the general or special

directions of the Minister”. The Chief of Staff is not a member of

the Executive and, therefore, his operational use of the Force is

limited to the extent that the executive Minister has issued

general or special directions to him. In such cases, his

responsibility is limited by such general or special executive

directions.

But there is Parliamentary wisdom in excluding

responsibility for operational use from the responsibilities

imposed on the Defence Board under section 9(1).

Operational use is more suited to the Officer identified in section

169 and the Minister i.e., the President. In the interest of clarity

and for the avoidance of doubt, (and Commissioners Ramson and

Nandlall after studied reflection have concluded that this doubt

was triggered by the baneful influence of a mindset cultivated

over a period of monolithic governance and the systemic failure

of duly appointed personnel to be guided by the parametric

limitations inherent in the governing statutory provisions), the

Commissioners find some assistance from a recent judicial

exposition of section 9(1) expressly, and section 9(2),

inferentially, in A.G et al -v- C. Crum Ewing (Civil Appeal

#46/2001). Singh JA, in delivering the judgment of the Court,

acknowledged that the “Defence Board is responsible for the

command, discipline and administration of the Force” and

later reiterates that “the overall discipline and

administration of the Force vests with the Board.” In this latter

assertion, due deference was given to the limitations set out in

section 9(2) with respect to “operational use”, hence, no

reference to overall “command” is made. In the former, the

learned Judge recognises that the Chief of Staff remains

subordinate to the Board in general and, with respect to

operational use, to the Minister, in particular.

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This interpretation of section 9 of the Act lends support to

the view that the Chief of Staff may justifiably be regarded as the

“Managing Director” executing functions for which the Board and

the Minister respectively are responsible. (Commissioner Ramson

prefers to refer to the Chief of Staff analogously as the

tropological Postmaster General of the Board). Section 169 vests

in him functions relating to “Command” on a routine diurnal

basis, subject to the oversight authority of the Board and the

Minister in their respective statutory configurations of

supervision. It would not be unfair or inaccurate to state that he

is free to give such orders, directions or instructions to the extent

that the Board or the Minister (in the case of operational use) has

not indicated otherwise.

In view of the Board’s responsibility for the command,

discipline and administration of the Force, the Chief of Staff can

hardly be deemed or expected to have unbridled power over the

Force, save as may be expressly prescribed by the Statute. The

plenitude of this prescription contained in section 9(2) is

understandable as expedition is required for operational matters.

However, this freedom from restraint which the Chief of Staff

enjoys is itself limited by the power of the Minister arising from

the countervailing limitations contained therein.

Defence Bureau

The Force in its presentation to the Commission drew

attention to the Board’s overload and insensitivity to the main

focus of the Force’s operation and efficiency, and submitted that:

…it is becoming increasingly clear that the Defence Board needs to divest itself of the routine administrative matters and devote the time saved to formulating broad policy directives. In this regard, this submission proposes as an alternative the introduction of parliamentary and ministerial mechanism as complementary to the Defence Board.

It has already been pointed out that the words “under the

general authority of the Minister” connote that the responsibility

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of the Defence Board for administration under section 9(1) is a

statutory executive responsibility which allows for directions of

an executive nature relating to the administration of the Force

and it is the function of the Chief-of-Staff to act in accordance

with those directions.

The Commission has already pronounced on the call for

alternative parliamentary and ministerial mechanism but there is

a gnawing tug of circumstantial evidence which predisposes the

Commission to conclude that the Defence Board’s performance

negatively impacts upon the Force’s operations and efficiency.

The Board needs to constantly remind itself about the

onerous and overall responsibilities imposed by section 9 since

any shortfall in performance would be inexcusable. Statutory

provision is available in section 12(1)(b) for delegation by the

Board of its executive functions where necessary, to any

member or members thereof by notification in the Gazette. The

Board may therefore wish to adopt this procedure in the interest

of convenience, expedition and greater efficiency, should its

level of proficiency for whatever reason, not meet the demands

articulated by the Force.

The Commission recommends that this matter of the

relationship between the Board and the Force be referred to the

Board for serious re-examination in light of the provisions of

section 12 of the Act. Notwithstanding such a re-examination,

however, the Commission recommends that, indeed, there needs

to be a bridging device between the Board and the Force, in the

form of a ‘Defence Bureau’ or a cognate grouping, as an agent of

the Board under section 12, answerable exclusively to the Board.

The proposed `Bureau’ should be civilian in composition,

emphasising the subordination of the Force to the Board. Given

the hybrid nature of its proposed tasks, being both civil and

military, however, the Commission suggests that consideration

be given to tapping into the reservoir of retired service personnel

who could provide the patulous assortment of skill and

experience to complement the executive administration of the

Board.

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It is suggested that the proposed `Bureau’, or other

cognate grouping, should be charged with facilitating the

organisation of the work of the Board; executing the orders of

the Board, and “any other matters for which the Board may

consider it necessary or desirable to provide in order to secure

the better performance of the functions of the Board”, in

accordance with section 12 of the Act.

The Commission emphasises that the proposed `Bureau’,

or other cognate grouping, should be regarded as an agent of

the Board in the nature of a quasi-military research and

development organ and should not be employed in a manner to

derogate from the statutory powers of either the Minister or the

Chief of Staff.

The Commission does not wish to provide a detailed

description of the proposed `Bureau’ or grouping referred to

above which would be best arrived at after due deliberation of

the Board, but suggests that, in accordance with section 11 of

the Act, the Secretary of the Board will also be designated as the

Head of the proposed `Bureau’ or grouping referred to above. In

reality, it is intended that the change will simply result in the

strengthening of the professional personnel available to the

Board under the direct supervision of its Secretary. The

Commission is of the view that the establishment of the

proposed `Defence Bureau’ or cognate grouping will:

(1) not necessitate a change in the law;

(2) provide a mechanism for enhancing the efficiency of

the Board in its relations with the Force; and,

(3) enhance the relationship between the Board and

Force as contemplated by the Act.

The Commission is satisfied that, the extant Defence Act

makes adequate provision for all matters relating to the manner

in which the Force should be administered and commanded. The

Commission is also satisfied that the Act makes adequate

provision for the subordination of the Force to civilian authority.

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Civil courts

Members of the Force do not enjoy immunity from criminal

prosecution in the civil courts and they can be charged before

these Courts even if a military charge for the same offence has

already been instituted (section 127). The civil court, however,

must take into account whatever punishment has been inflicted

by the military court for any act or omission wholly or partly

constituting the offence under civil law.

Further in the case of murder, manslaughter, treason,

treason–felony, or rape committed in Guyana, a criminal charge

for any such offence is the only legal possibility. In other words,

such offences, once committed in Guyana, must be tried and

punished in the civil courts (section 76(4)). It is clear that the

Defence Act does not in any way seek to compromise the

accountability of members of the Force to the civil courts for

criminal misconduct.

The Director of Public Prosecutions, while he or she has no

power or control over Court-Martial proceedings, can institute

and undertake criminal proceedings against any person before

any civil court in respect of any offence committed against the

laws of Guyana even if the acts or omissions constitute military

offences.

The Force is an unincorporated agency of the State, and in

the name of the Attorney-General, it can be sued along with the

military personnel (except a member of the Coast Guard under

section 208 B(3)) for any loss or damage resulting from any

tortious act or omission committed by that person in the course

of his official duties. However, the assets of the Force are not

liable to be levied upon in execution of judgment but the assets

of individual members do not enjoy the same immunity from levy

in execution of judgment.

Parliament has not sought to protect the Force or its

members (except members of the Coast Guard) from the civil

law processes. At the same time, there has been no special

parliamentary effort to make the Force accountable to civilian

authorities other than executive officials.

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Such a parliamentary approach can hardly be faulted since

it is undesirable that a military body should be accountable to

civilian non-executive authority. However, it is important that the

Force be accountable to the National Assembly because of its

central importance to national defence, its internal security

functions, and the size of its budgetary allocation.

Recommendations

With regard to “relationship with, and responsibility to,

civilian authority” the Commission recommends as follows:

(104) There is no need for the creation of a Ministry of Defence

and a dedicated Minister of Defence.

(105) The relationship between the Board and the Force be

referred to the Board for serious re-examination in light

of the provisions of section 12 of the Act.

(106) There should be a bridging device between the Board

and the Force in the form of a ‘Defence Bureau’ or a

cognate grouping, as an agent of the Board under

section 12, answerable exclusively to the Board.

(107) The Force should be accountable to the National

Assembly because of its central importance to national

defence, its internal security functions, and the size of its

budgetary allocation.

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Section 5:Financial and Public Accountability


financial and public accountability of the GDF.

The accounting system of the GDF is governed by the

Financial and Audit Act, Chapter 73:01 and the Financial and

Stores Regulations.

Control

Capital expenditure falls under the control of the Office of

the President since the President has not assigned responsibility

for defence to any Minister. The Office of the President has a sub-

accounting status for capital expenditure relating to the GDF and

is therefore accountable to the National Assembly for such

expenditure from budgetary allocations made to the Office of the

President. The GDF submitted that the control of capital

expenditure should fall directly under it in the interest of direct

accountability, greater efficiency and flexibility.

The Commission is not convinced however, that capital

expenditure should be placed under the administrative

responsibility of the GDF. Capital expenditure is more a matter

executive than administrative responsibility and would appear

more suited to executive than to administrative decision-making.

It is evidently not so much a question of who disburses capital

funds as who decides on the objective of such disbursement.

Administrative responsibility, which includes administrative

financial responsibility, is statutorily imposed on the Defence

Board. If capital expenditure were to be placed under the direct

administrative control of the GDF, the Chief of Staff would be

answerable to the Defence Board. Since the Chief of Staff is

himself a statutory member of the Defence Board, there is no

reason why decisions involving capital expenditure should be

made by him rather than the collective membership of the

Board.

Given the critical comments in the report of the Accountant

General in relation to current account expenditure, the

Commission does not recommend that the GDF be granted

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additional financial responsibility. Capital expenditure would

appear to rest more appropriately and securely with the Defence

Board which functions under the general authority of the Office

of the President (in the absence of a substantive Ministry).

Current expenditure falls under the control of the GDF,

which has non sub-accounting status. Such expenditure is well

suited to day-to-day administrative decision-making to meet the

expenses involved in the administration of the GDF. The GDF

has, however, recommended that limits to contracts for supplies

and services should be increased to meet increased costs. The

Commission is in favour of a measured increase commensurate

with such increased costs. It wishes to caution that, whatever the

increase, such contracts, whatever the value, should not be

related to supplies or services of a capital nature. Even contract–

splitting cannot change a capital expenditure into a current

expenditure.

Expenditure

The Commission is concerned that in 2003 the expenditure

for transportation services amounted to the astronomical sum of

$137 million (one hundred and thirty-seven (137) million dollars).

If such expenditure were legitimate (and the Commission has no

basis for saying that it was not), there may be a need for the

Defence Board to approve the purchase of means of

transportation as a capital expense. However, the Commission

prefers to leave such matters for consideration by the National

Assembly and the Public Accounts Committee.

The Commission wishes to point out that it might have

been more economical to acquire some capital assets in the form

of a few vehicles rather than to have incurred current

expenditure for transportation services of such magnitude. There

may well be need for a collaborative relationship between those

responsible for capital expenditure and those responsible for

current expenditure so that choices between capital and current

expenditures can be made on the basis of knowledge and

economic wisdom.

The GDF advocated that funds should be made available

according to a system of programme budgeting since this would

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allow for timely release of funds to the improvement of

operational efficiency. The GDF informed the Commission that

the current system whereby funds are released is “line item”

level, which tends to be disruptive of smooth planning and

operational efficiency.

The Commission recognises the desirability for the timely

release of funds in the interest of operational efficiency and

recommends that an imprest based on programme budgeting

under the control of a responsible financial officer in the office of

the President can be considered.

Recommendations:

With regard to the “Financial and Public Accountability” of

the GDF, the Commission recommends:

(108) Capital expenditure should not be placed under the

administrative responsibility of the GDF.

(109) The GDF should not be granted additional financial

responsibility.

(110) There should be a measured increase (commensurate

with increased cost) in the limits to contracts for supplies

and services to meet increased costs.

(111) A collaborative relationship between those responsible

for capital expenditure and those responsible for current

expenditure should be established.

(112) An imprest based on programme budgeting under the

control of a responsible financial officer in the Office of

the President should be considered.

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Part 3

The Guyana Fire Service

214



functions and operations of the Guyana Fire Service.

The Guyana Fire Service (GFS) was established in 1957 as

a public body under section 3(1) of the Fire Service Act (the Act)

Chapter 22:02. The Act does not contain any provision which

specifically defines or sets out the duties and responsibilities of

the Service. Therefore, it is necessary to peruse its relevant

provisions to ascertain what duties and responsibilities

Parliament intended should be imposed on the GFS.

Responsibility

From such a perusal, more particularly of section 12 (2)(c)

and section 17 (1), it appears that the duties and responsibilities

of the GFS are essentially fire prevention, fire fighting and the

protection of life and property from destruction by fire or during

acts done for fire-fighting purposes. Even though there exists a

separate Act governing fire prevention i.e., the Fire Prevention

Act, Chapter 22:01, it is expressed in the Act that enforcement of

the provisions of that Act is the responsibility of the GFS (section

12(2) (c)).

The risk of damage by fire and the likely seriousness of

such damage are magnified in Guyana by the number and nature

of the structures which exist and are increasingly being erected

throughout the country. This is particularly so in areas already

under dense occupation and in which there is an increasing

tendency to erect multi-storied buildings. The number of wooden

structures and a history of catastrophic fires in Guyana also have

to be borne in mind.

Construction for the purpose of providing increased

accommodation ought not to be unduly impeded or restricted by

the extent of the capacity and capability of the GFS to fight fire.

It is therefore imperative that it be adequately equipped to be

responsive to changing challenges and circumstances.

An increase in the number of multi-storied and high-rise

buildings necessitates that fire tenders be equipped with

hydraulic lifts for the attainment of height by fire-fighters. The

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use of ladders, while not obsolete, no longer suffices in the

changing structural landscape.

The construction of buildings in locations distant from main

canals and waterways necessitates the nearby presence of

functional fire hydrants from which the GFS can easily and

conveniently access water in their fire-fighting efforts. Such

water can be provided through pipelines from the closest canal,

waterway or river or from the installations of the Guyana Water

Inc. (GWI).

The attention of the Commission was drawn to a pipeline

in Georgetown through which water from the Demerara River

could be accessed by the GFS. Unfortunately, this important

supply line was allowed to become non-functional and could not

have played a part in recent fire fighting efforts by the GFS in the

Lombard Street area.

The risks of damage by fire are further increased by the

more widespread use of electric energy and the Guyana Power

and Light’s (GPL) limited success in ensuring safe systems of

generation and transmission of electricity. The risks of fire

necessitate that more efficient measures be designed and

implemented to eliminate or reduce such risks. Use of

independent power supply has its attendant risks and strict

licensing procedures by the GFS need to be implemented to

ensure fires due to faulty electrical supplies are kept to a

minimum.

Personnel

The authorised strength of the GFS is 400 while its actual

strength stands at 355. The shortage of 45 personnel, ranging

from Chief Fire Officer to clerical and support staff represents

11% of the Service.

The Deputy Chief Fire Officer had for some considerable

time been acting as the Chief Fire Officer and no one had been

appointed to perform the duties of Deputy Chief Fire Officer. It

might be that this was due to the delay in the appointment of the

Public Service Commission (PSC). With the recent constitution of

that Commission, the Commission is pleased to note the

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appointments of the Chief Fire Officer and the Deputy Chief Fire

Officer.

The Commission has noted that there is a shortage of 6

Section Leaders from an authorised strength of 23. Yet, the

position of leading Fireman/Woman has only one vacancy out of

an authorised strength of 53. In view of the fact that promotion

from Leading Fireman/Woman to the next higher post of Section

Leader does not require the PSC’s involvement, the Commission

fails to understand why none of 52 leading Firemen / Women has

demonstrated a capability to perform and therefore earn

promotion to the next higher level of Section Leader.

While the Commission is of the view that promotion must

be based on merit and must not be used as a means to merely

fill existing vacancies, this curious state of affairs ought not to

persist. Surely, out of 51 leading Firemen /Women, there must

be a few who could be trained to perform at the next higher level

of Section Leader.

The Chief Fire Officer should address this apparent

anomaly which, if it persists, can have an adverse effect on the

operational effectiveness of the GFS.

The Commission is particularly concerned that currently

there exists a shortage of 20 Firemen /Women out of an

authorised strength of 277. Personnel at the level of Firemen

/Women are the frontline functionaries in any fire-fighting

operation and, therefore, it is not in the public interest to have so

many vacancies at this level.

The Commission accepts that a monthly salary of $23,854

with $8,950 allowances may not be sufficient to attract persons

with the educational level to assimilate training and favours an

increase in salary at the level of Fireman/Woman. Having regard

to the monthly salary differentials which currently exist among

the positions of Section Leader ($44,630), leading

Fireman/Woman ($29,572) and Fireman/Woman ($23,845), the

Commission is of the view that there is a case for salary

increases at the lower levels of Leading Fireman/Woman and

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Fireman/Woman — quite apart from any across-the- board

increase in salaries.

The Commission therefore recommends that such

adjustments should be effected not merely to remove

disproportionate differentials but also to help to alleviate the

shortage in frontline personnel. Such adjustments can be easily

effected by ministerial regulation made under section 28 (g) of

the Act.

The authorised strength of the clerical and office support

staff of the GFS is eight but its actual strength is zero. Apart from

finding such a state of affairs puzzling, the Commission considers

it unacceptable that an important national institution, such as

the GFS, has no clerical or office support staff. This results in fire-

fighting personnel performing clerical and office support

functions which can lead to low morale among these servicemen.

The Commission finds it difficult to understand how the

GFS could have allowed itself to reach such an undesirable and

untenable position — except through nonchalance and

mismanagement on its part and on the part of the Ministry of

Home Affairs. The Commission is of the view that the Public

Service Ministry (PSM) should be approached to assist with the

recruitment of such personnel and recommends that this be

done without delay.

Section 7 of the Act provides:

The Service may be composed of regular members or of auxiliary members or of both regular and auxiliary members.

The Commission has been unable to elicit information on the

strength of the auxiliary component of the GFS and has formed

the distinct impression that little or no attention has been paid to

maintaining an auxiliary unit as approved by Parliament. The

Commission recommends that measures be taken to resuscitate

an auxiliary unit in order to strengthen the GFS reserve capacity

in the event that its regular unit should find any fire-fighting task

overwhelming. Employers can be approached to encourage their

employees to join the auxiliary force and receive fire-fighting

training at no cost to the employer. Such training can be

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beneficial not only to national safety but also for the safety and

welfare of the employer’s enterprises.

The GFS is frequently accused of tardiness and lethargy in

its responses to reports. Whether or not there is some

justification for such allegations, the Commission wishes to draw

attention to regulations 7 and 22 of the Fire Service Regulations

which mandate as follows:

Regulation 7

All members of the Service shall carry out the lawful commands of their superior officers and shall devote their time and energies to fire fighting, fire prevention, the protection of life and property and aiding the sick and injured. They shall at all times carry out their duties without fear or favour, malice or ill-will, and with strict impartiality and courtesy towards members of the general public.

Regulation 22

Every member of the Service shall at all times punctually and promptly perform all appointed duties and attend to all matters within the scope of his office, and whether a member of the Service is nominally on duty or off duty his responsibility shall be the same and it shall be his duty to take action for the protection of life and property against fire.

Regulations 7 and 22 cumulatively contain the duties of each

member of the GFS in both their functional and attitudinal

aspects. The GFS would do well to acquaint its members with

these two regulations to induce in them the required attitudinal

approach for the better performance of their duties. The

disciplinary procedures of the GFS must also provide sanctions

for breach of these regulations, which must also be faithfully

applied.

Equipment

The Commission received evidence of the high risk of

damage by fire which is likely in the absence of a fireboat within

the fire-fighting armoury of the GFS. It is public knowledge that

there are several wharves which, at any given time, have

sizeable quantities of goods and other capital assets. Vessels

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with and without cargo can invariably be found moored thereto

or nearby. Should there be an outbreak of a major fire, either on

one of the wharves or on one of the ships or vessels moored

nearby, the lack of a fire boat will either severely or totally

handicap the GFS in rendering assistance in fighting such a

conflagration. Should a ship or vessel off the shore of Guyana

have a major fire on board and request assistance from the GFS,

it will be unable to respond because of this deficiency. These

circumstances point unerringly in the direction of the necessity

of the GFS having at least two fireboats.

The Commission therefore recommends that efforts be

made by the Government to assist the GFS to acquire two fire

boats or at least one in the short term. It should be noted that

Parliament contemplated fireboats among the fire-fighting

equipment of the GFS. Thus, section 12 (2) of the Act provides:

It shall be the duty of the Chief Fire Officer —

(b) to see that the fire engines, fire boats and other fire equipment are kept in good order and thorough repair and are used to the best advantage for fire-fighting purposes; (emphasis added)

The GFS has had fireboats in the not-so-distant past and it is

therefore unacceptable that a national fire-fighting service

should be without such an important asset especially in view of

the circumstances set out above.

Hydrants

It is lamentable that, out of a total of about 580 fire

hydrants located in the City of Georgetown, fewer than 90 are

functional. Such a state of affairs could have been occasioned

only by prolonged neglect. The Commission has been informed

that this is in part due to uncertainty as to which statutory

authority is legally responsible for maintaining the fire hydrants

in the city and a tendency of denying responsibility by such

agencies. By any measure, this is an unsatisfactory state of

affairs.

The GFS maintained that its responsibility in the matter is

limited to checking on the condition of the fire hydrants (among

other things) and reporting on their condition to the Minister at

220

the end of each financial year (see section12 (1) (a) of the Act).

The GFS contends, however, that it has never been its

responsibility to maintain them.

The Commission has noted that, under section 279(1) of

the Municipal and District Councils Act, Chapter 28:01, the City

Council has the responsibility of providing the City with proper

and sufficient water, not only for sanitary and domestic purposes

but also for “extinguishing fires” and is empowered to do and

execute “all works, matters and things necessary for, and

incidental to, such purposes” (section 279 (2)). Town Councils

have the same responsibilities and powers (section 280); (see

also section 282 for similar powers of District Councils).

Under section 14 of the Georgetown Sewerage and Water

Act (now repealed) the Georgetown Sewerage and Water

Commissioners (GS&WC) had specific responsibility for the care /

inspection, maintenance, repair, working and management of the

waterworks of Georgetown; and, under section 15, the

Commissioners held the sewerage system and the waterworks in

trust for the inhabitants of Georgetown.

The issue as to which authority or organisation bears, or

should bear, legal responsibility for the maintenance of the fire

hydrants in the City and Towns and the water supply lines to

such hydrants should be resolved with expedition through

discussion among the relevant authorities. Clear delineations of

lines of authority and responsibility should be the objective of

such discussion.

It is a sad state of affairs for the GFS to continue to be

handicapped in its fire–fighting operations through non-functional

fire hydrants while the subject of responsibility for maintaining

the fire hydrants and the connecting water supply lines continues

to provoke denials from the relevant authorities and remains

unresolved. Parliament should not hesitate to intervene if

legislative intervention is necessary to finally remove doubts and

confusion.

Stations

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The Commission has been alerted to the density of housing

and population in the areas between Ogle and Rosignol and

between Georgetown and Timehri, consequent upon the

establishment of new housing schemes and industries in those

areas in recent years. In view of the fact that there is no fire

station in those two areas, the Commission recommends that

the GFS should locate an additional fire station in each of those

areas with due regard to logistic convenience and functional

effectiveness. The Commission strongly recommends that this

issue be treated with the urgency which it deserves.

The Commission is mindful of the fact that additional fire

stations can impose an undesirable burden on Central

Government but wishes to point out that a portion of the total

maintenance cost of any unit must be borne by the local

authority or authorities of the areas serviced by that unit. Section

6 of the Act provides:

(1) Anything in section 5 to the contrary notwithstanding a portion of the total cost of maintaining any unit shall be borne by the local authority or local authorities as the case may be of the area in respect of which the unit is primarily maintained.

(2) The contribution to be made by a local authority towards the maintenance of any unit under the preceding section shall be determined by the Minister after consultation with the local authority or local authorities concerned, and shall be deemed to be expenditure which the local authority is by law authorised to incur.

It seems fit and proper that communities which enjoy the

additional security of being serviced by fire stations within their

localities should be made to bear part of the maintenance costs

of such stations.

Recommendations

With regard to the ‘Functions and Operations’ of the GFS

the Commission recommends the following:

(113) The Minister should cause a needs assessment of the

Service to be done in light of changing social conditions

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and appropriate action should be taken in order of

priority.

(114) Since the supply of water is of paramount importance to

fire-fighting efforts, the Minister should use his office to

ensure that fire hydrants are supplied with adequate

water for fire–fighting purposes.

(115) Select personnel from the rank of Leading Fireman /

Woman must be trained to function at the rank above

this, without delay.

(116) Salary increases should be made for the lowest ranks

(Leading Fireman / Woman) apart from any across-the-

board increase.

(117) The Public Service Ministry should be approached for

assistance in recruitment of clerical personnel, as a

matter of urgency.

(118) Immediate efforts should be made by the Minister to

acquire at least one fire boat for the GFS in the short

term.

(119) The issue of who bears legal responsibility for the

maintenance of the fire hydrants should be speedily

resolved, even if it requires legislative intervention.

(120) Additional fire stations must be established between

Ogle and Rosignol and Georgetown and Timehri, with

dispatch.

(121) Communities that benefit from the presence of fire

stations should bear part of their maintenance costs.

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composition and structure of the GFS.

Organisation

The Guyana Fire Service (GFS) was established under

section 3 (1) of the Fire Service Act, Chapter 22:02. By section 12

(1) of the Guyana Independence Order 1966, section 10 A of the

Act continued to have effect as if it were a delegation made by

the Public Service Commission under article 96 (2) of the 1966

Constitution.

Under section 17 (2) of the Constitution of the Co-operative

Republic of Guyana Act, that delegation was deemed to have

been made by the Public Service Commission (PSC) under the

1980 Constitution. The GFS is, therefore, a department of the

Government and its members, who are appointed by the Chief

Fire Officer under section 10 A of the Fire Service Act, are

appointed by him as delegate of the PSC. Section 10 A reads:

Subject to the provisions of this Act and of the Regulations, the Chief Fire Officer may appoint fit and proper persons to be subordinate fire officers and firemen of the Service.

The GFS comprises one or more units constituted in

accordance with the provisions of the Act. The Act itself

establishes 4 units: (1) the Guyana Fire Service Unit in the City of

Georgetown; (2) the New Amsterdam Fire Service Unit in the

Town of New Amsterdam; (3) the Timehri Fire Service Unit at

Timehri; and (4) the Linden Fire Service Unit in the Town of

Linden.

These units have been described in the Schedule to the Act

pursuant to section 4(1). In order to avoid the inconvenience of

legislative inflexibility and to meet changes in social conditions

and needs, the Act itself provides for amendments of the

Schedule to be made by ministerial order. Section 4 (2) provides

that: “the Minister may by order from time to time amend the

Schedule.”

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The Minister, therefore, has been empowered to increase or

decrease the number of units by amending the Schedule. The

power to increase the number of units of the GFS allows for

decentralisation of administrative authority from the Chief Fire

Officer to the officers in charge of the units. It is instructive that

Regulation 5 of the Fire Service Regulations provides:

Subject to the general control and orders of the Chief Fire Officer, an officer in charge of a unit shall have the command, direction and general management of the unit and shall be responsible to the Chief Fire Officer for all matters relating to interior economy, fire fighting and fire prevention and the performance of all executive Service duties in the unit.

The more units the Minister creates by amending the Schedule,

the more he devolves the administrative authority of the Chief

Fire Officer to the officers in charge of the units.

The Commission noted from the presentation made by the

GFS that there are only three positions of Divisional Officers but

there are four statutory units. The Commission is of the view that

there should be as many Divisional Officers as there are units

since, ideally, every unit should be under the “command,

direction and general management” of a Divisional Officer. The

statutory authority to fix the number of Divisional Officers

resides in the Minister under section 8 which provides:

The Service shall consist of a Chief Fire Officer, a Deputy Chief Fire Officer and such number of officers, subordinate fire officers and firemen as the Minister may from time to time direct.

The Commission recommends that consideration be given to an

increase in the number of Divisional Officers pari passu with the

number of units.

The Commission is of the view that, having regard to the

size, housing and population on the Essequibo Coast, coupled

with the distance which separates the Essequibo Coast from any

other fire station, there are valid reasons for upgrading the Anna

Regina fire station and designating it a unit. If this is done, it

should then be placed under the “command, direction and

general management” of a Divisional Officer.

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The GFS currently operates out of eleven locations

countrywide, only four of which have been designated as units.

The Commission does not recommend that the Minister should

designate every major fire station a unit. However, the

Commission is of the view that the administrative structure of

the GFS should be so fashioned that every station or location

which is not, should be a sub-unit of a particular unit so that

devolution of central authority can occur in a structured manner

in consonance with its command structure. Regulation 7

provides:

All members of the Service shall carry out the lawful commands of their superior officers….

Regulation 8 provides:

All members of the Service shall perform such duties as may be assigned them by their superiors in rank.

Each Divisional Officer, apart from having administrative charge

of his own unit, will also exercise administrative authority over

Station Officers in charge of the sub–units attached to his unit.

Divisional Officers, in turn, will be administratively answerable to

the Chief Fire Officer (or his Deputy) in accordance with

regulation 5. As it becomes necessary to establish more fire

stations, the need for more units under which such fire stations

can function as sub-units will also grow. Commensurately, there

will then be devolution of administrative authority from the Chief

Fire Officer to Divisional Officers and to Station Officers.

It should be noted that while the Act provides for an office

of Chief Fire Officer and that of Deputy Chief Fire Officer, it does

not limit the number of other officers, subordinate fire officers

and firemen who make up the bulk of the GFS. Rather, in

furtherance of executive flexibility, it confers upon the Minister

discretionary power to increase or reduce its membership to suit

changing social conditions (section 8). Further, the Act allows the

Minister to do so by “direction” in contradistinction to “order” or

“regulation” which makes for even greater executive flexibility.

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The Minister by way of Regulations made under section 28

of the Act has designated the ranks of the GFS below that of

Chief Fire Officer in order of seniority as follows:

(1) Deputy Chief Fire Officer,

(2) Divisional Officer,

(3) Assistant Divisional Officer,

(4) Station Officer,

(5) Sub Officer,

(6) Section Leader,

(7) Leading Fireman,

(8) Fireman.

As was mentioned above, apart from Deputy Chief Fire Officer,

the Minister can by direction fix the strength of each of those

ranks. From the written presentation of the GFS, the Commission

notes the absence of the rank of Assistant Divisional Officer and

the presence of the rank of Cadet Officer in the structure of the

GFS. The rank of Cadet Officer has been placed lower than that

of Assistant Divisional Officer (if the latter rank were to be

inserted in accordance with the Regulations).

The Commission is not aware that regulation 3 of the Fire

Service Regulations has been amended to accommodate such a

change and, while there may have been good and valid reasons

for the change, the Commission recommends that the necessary

regulatory amendment be made by the Minister to correct this

innovation.

Although the Act does not provide for clerical and office

support, the GFS must be supported by office structure and staff.

As a department of the Public Service, the GFS is dependent on

the PSC to meet such needs since the structure and personnel

for such support services are not dealt with by the Act.

The GFS has mentioned that the authorised strength of

Clerical and Office Support Staff stands at eight. This leads the

Commission to believe that there exists a clerical and support

staff structure, though unmanned by any such personnel. The

Commission is concerned that the authorised strength of such

support staff is only eight when the GFS operates from eleven

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locations with four units. The practice of utilising fire-fighting

personnel to staff such a structure is not commendable as it

represents a wasteful and inefficient use of scarce resources.

Both the authorised and actual strength of its clerical and office

support staff should be increased to adequately address the

needs of the GFS.

Duties

The authority to command and superintend the GFS

resides in the Chief Fire Officer subject to the general order and

direction of the Minister. He is responsible to the Minister for the

efficient conduct and administration of the Service and for the

proper expenditure of all public money appropriated to it.


The Chief Fire Officer shall, subject to the general order and direction of the Minister have the command and superintendence of the Service and he shall be responsible to the Minister for the efficient control and administration of the Service and for the proper expenditure of all public moneys appropriated for the service thereof.

The GFS was statutorily carved out of the Guyana Police Force in

1957 when the latter bore responsibility for fire prevention and

fire-fighting. It is hardly surprising, therefore, that the words

used in section 12 (1) are in pari materia with section 7(1) of the

Police Act except that the words “The Chief Fire Officer” have

been substituted for the words “The Commissioner.” The

Commission has already dealt quite extensively with section 7(1)

of the Police Act in its analysis of that sub-section and there is no

need to repeat that analysis here. Suffice it to say that such

analysis applies mutatis mutandis to section 12(1).

The duties of the Chief Fire Officer are specifically defined

in section 12 (2) and section 12 (3) places his headquarters in

the city of Georgetown. In the performance of his duties, the

Deputy Chief Fire Officer is tasked by section 13 with acting as

his principal assistant. Section 13 further empowers the Deputy

Chief Fire Officer “to do or suffer any act or thing which may by

law be done or suffered by the Chief Fire Officer” whenever the

Chief Fire Officer is absent or incapacitated or when so

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authorised by him. Thus, not only is the Deputy Chief Fire Officer

the principal assistant to the Chief Fire Officer but he can

exercise the powers of the Chief Fire Officer during his absence

or incapacity or even during his presence or even when he is not

incapacitated, if authorised by him (the Chief Fire Officer). Thus,

in certain circumstances, the Deputy Chief Fire Officer may

exercise the powers of the Chief Fire Officer but ordinarily he

acts as the principal assistant to him. Section 13 should be

interpreted with the distinction between “duty” and “power” in

mind and reads as follows:

The Deputy Chief Fire Officer shall act as principal assistant to the Chief Fire Officer in the performance of his duties in respect of the Service, and shall have power, during the absence or incapacity of the Chief Fire Officer, or when authorised by him, to do or suffer any act or thing which may by law be done or suffered by the Chief Fire Officer.

Section 14 gives recognition to the need for and enables

the devolution of authority by the Chief Fire Officer himself and

by the Minister by way of regulations. It provides:

(1) The officers of the Service shall perform such duties of the Chief Fire Officer as may be legally delegated to them and all such duties as devolve upon them under the regulations.

(2) The subordinate fire officers and firemen of the Service shall perform such duties as devolve upon them under the regulations and such other duties as the Chief Fire Officer may determine.

An example of devolution of authority by regulation is regulation

5 to which reference has already been made.

Composition

Section 7 provides:

The Service may be composed of regular members or of auxiliary members or of both regular and auxiliary members.

Despite the legal possibility of the GFS being composed of

auxiliary members only, the Commission is unable to envisage

the GFS being capable of fulfilling its statutory mandates with an

auxiliary membership only.

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At present, regular members comprise the GFS with some

indeterminate number of auxiliary members. Since the Act does

not provide for the number of auxiliary members to be limited, it

is in the interest of the GFS not merely to ensure its regular

membership attain its authorised strength but to co-opt as many

fit and proper persons as auxiliaries. It does appear to the

Commission that no positive effort is being made to do so and

that the auxiliary membership of the GFS, if there exists any, is

being allowed to dwindle. Such an attitude will eventually have a

nullifying effect on section 15 which provides:

It shall be lawful for the Chief Fire Officer in any case where in his opinion additional assistance is required for fire-fighting purposes to call out for service any auxiliary members of the Service….

The Commission is of the view that since the Act contemplates

an auxiliary membership within its structure, this membership

should be strengthened in the interest of public welfare and

safety.

In order to remove doubt or confusion which is evident

from the presentation of the GFS, the Commission wishes to

point out that regular members of the GFS are public officers,

and are subject to the Regulations and General Orders which

regulate the service of public officers. However, such Regulations

and General Orders apply only in so far as the Regulations made

by the Minister under section 28 of the Act are silent. Regulation

28 of the Fire Service Regulations provides:

All regular members of the Service shall in respect of any matter not provided for in the Regulations, be subject to the provisions of such Regulations and General Orders as from time to time regulate the service of public officers.

Regulations cover such matters as pay and allowances (including

housing allowance); admission; promotion; training; uniform;

leave; retirement and discipline. Standardised regulations tend

to eliminate arbitrary behaviour and discriminatory practices.

However, the Commission recommends a comprehensive review

to bring them in conformity with social changes and current

social realities.

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The Commission sees the need to point out that Parts 11

and IV of the Police Regulations, Chap 77 (King’s Ed 1953) still

apply to the GFS. Regulation 23 A of the Fire Service Regulations

reads:

The provisions of Parts 11 and 1V of the Police Regulations relating to discipline shall, subject to paragraph (2) of this regulation, apply to the Fire Service.

Part 11 of the Police Regulations in its application to the GFS

deals with suspension or dismissal of subordinate fire officers

and firemen while Part 1V deals with the discipline of subordinate

fire offices and firemen. Regulation 54 of Part 1V specifies the

disciplinary offences. The Commission recommends that the GFS

as an entity, now separate from the Guyana Police Force, should

have its own code of disciplinary offences since those relating to

the Guyana Police Force will not be all relevant to the GFS while

there may also be need to create other offences.

Recommendations

With regard to the “Composition and Structure” of the GFS,

the Commission recommends:

(122) The Minister should amend the Schedule to the Act to

increase the number of Divisional Officers pari passu with

the number of units.

(123) The Anna Regina Fire Station should be upgraded and

designated a unit and be placed under the “command,

direction and general management” of a Divisional

Officer.

(124) The administrative structure of the GFS should be so

fashioned that every station or location which is not a

unit, should be made a sub-unit of a particular unit so

that devolution of central authority can occur in a

structured manner in consonance with its command

structure.

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(125) The Minister should amend the Regulations to correct the

present structural anomaly whereby the rank of Assistant

Divisional Officer, which is provided for by the

Regulations, does not exist in the structure of the GFS

but there is in existence a rank of cadet Officer for which

there is no provision in the Regulations.

(126) Both the authorised and actual strength of the clerical

and office support staff should be increased to

adequately address the needs of the GFS and the

practice of utilising fire-fighting personnel to perform

such functions should cease forthwith.

(127) The auxiliary membership of the GFS should be

increased significantly.

(128) There should be a comprehensive review of the

Regulations to bring them in conformity with social

changes and current economic and other realities.

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balance within the GFS.

It is rather paradoxical that the words “ethnic balance”

should be used in the context of a national institution in

Guyanese society when society itself is ethnically imbalanced.

Even if the words “ethnic balance” were to be interpreted as

meaning ethnic representation according to demographic

strength, such an interpretation would have its own self-

contradiction since proportional ethnic representation would

entail ethnic imbalances in our ethnically imbalanced society.

The idea of an “ethnic balance” cannot, therefore, ignore the

disproportionate ethnic composition of the society itself.

Ratio

It is desirable for public institutions in a multi-ethnic

society to present a multi-ethnic face reflecting, thereby, the

image of its people. But, apart from form and image, the

desirability of all ethnic groups to play an inclusive role in the

membership of public institutions usually has to do with the need

for a wider pool of national human resources across ethnic lines

if the various public institutions are to reflect the country’s ethnic

composition.

The GFS, as a public institution, has never been the subject

of expressed serious concern as to its ethnic composition despite

the fact that there has always been an ethnic imbalance in its

membership in favour of Afro-Guyanese. At present, there is a

ratio of 14 Afro-Guyanese to 1 Indo-Guyanese with the

percentage of other ethnic groups at almost nil. This lack of

expressed serious concern may be due principally to the fact

that the GFS has never been viewed as a public institution which

is endowed with coercive public law powers which can be used

oppressively against any particular ethnic group or groups.

The core functions of the GFS are not of such a nature as

to bring it in confrontation with members of society, unlike those

of the GPF and, to a lesser extent, the GDF. Any desirability for

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greater multi-ethnic inclusiveness in the GFS must therefore be

viewed as reflective of a desire that the recruitment pool from

which members of the GFS are selected should be so augmented

as to include not just Afro-Guyanese in the main but a greater

number of qualified applicants from all other ethnic groups so

that better quality recruits can be selected on the principle of

merit, to the enhancement of the efficiency of the GFS and its

national image.

The GFS stated in its presentation to the Commission that:

Throughout the years an ethnic imbalance was always present in the Guyana Fire Service where Afro-Guyanese dominate the organization much more than the Indo-Guyanese at the rate of 14:01.The failure to have this situation rectified should not be seen as administration inefficiency but lies squarely on the mindset of the Indo-Guyanese and other ethnic groups.

Recruitment

The Commission does not gainsay the contention that the

mindset of Indo-Guyanese and other ethnic groups is an

impediment to whatever efforts have been made or whatever

strategies have been implemented to increase the level of

representation of Indo-Guyanese and other non Afro–Guyanese in

the membership of the GFS. However, the Commission cannot

endorse the submission that the failure of such efforts must be

laid squarely on the mindset of the Indo-Guyanese and other non

Afro-Guyanese, since such a mindset may exist even among

some sections of the Afro-Guyanese population.

If certain sections of the population have a negative

mindset towards service in the GFS, then it behoves the GFS

itself which has the responsibility of seeking to attract the best

recruits from the population at large to eliminate such a mindset.

Misperceptions may have caused such a mindset among those

sections of the population. Hence, the GFS should make positive

efforts to remove or minimise such misperceptions. The GFS, as

a national institution, cannot rest complacently in the knowledge

that the majority of the population (Indo-Guyanese and other non

Afro-Guyanese) have a mindset which effectively restricts its

recruitment pool to Afro-Guyanese in the main.

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The Constitution outlaws forced labour and guarantees

freedom of association. Indo-Guyanese and other non-Afro-

Guyanese may not see it fit to enlist in the GFS. But it is

certainly not in the interest of the GFS that any ethnic group, or

indeed any citizen, should have negative perceptions of the

implications of service within its membership.

The GFS should take positive steps to remove such

misperceptions by policies and practices designed to ensure that

service in the GFS becomes an attractive option in the open

labour market and that the GFS is portrayed to all ethnic groups,

particularly the Indo-Guyanese and other non-African groups, as

an organisation which caters to ethnic diversity.

The GFS itself identified some factors which could have had

some deterrent and negative effects on recruitment and could

have contributed to the ethnic imbalance which has always beset

its membership. The GFS recommended measures which can be

implemented in an effort to rectify this imbalance. The

Commission agrees with measures designed to ensure that

membership of the GFS does not entail unnecessary hardship or

inconvenience to any ethnic group, e.g., posting of personnel to

stations which are closest to their nuclear homes; allowing time-

off for religious worship; and the provision of meals which cater

to, or at least do not disregard, peculiar religious tenets or

cultural tastes.

The Commission wishes to caution that training, discipline

and operational efficiency, however, cannot be sacrificed at the

altar of ethnic balance or greater ethnic diversity. The

Commission is of the view that high training standards and

operational efficiency are not inconsistent with greater ethnic

diversity and it would be foolhardy to reduce entry qualification

levels and training standards in any effort to attract ethnically

diverse recruits. The GFS should seek to enlarge its pool of

human resources for recruitment without the lowering of such

standards. Should the GFS succeed in so doing, a system of

recruitment based on the principle of merit is likely to yield the

best recruits and this, in turn, would conduce to greater

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efficiency. Greater ethnic diversity, though desirable, provides no

rational basis for the lowering of entry or training levels.

Recommendations

With regards to “Ethnic Balance” in the GFS, the

Commission recommends the following:

(129) The GFS should conceive, design and promulgate such

policies and practices that make it an attractive option in

the open labour market and to portray the image,

particularly to the Indo-Guyanese and other non Afro-

Guyanese, that the GFS is an organisation which caters

to ethnic diversity within its membership.

(130) The necessary measures should be implemented to

rectify the ethnic imbalance.

(131) Measures should be designed to ensure that membership

of the GFS does not entail unnecessary hardship or

inconvenience to any ethnic group.

(132) In its quest to redress the ethnic imbalance, the GFS

must be cautious not to sacrifice training, discipline and

operational efficiency at the altar of ethnic balance or

greater ethnic diversity.

(133) Whilst the GFS must strive to enlarge its pool of human

resources for recruitment, this must be aggressively

pursued without lowering the entry qualification levels.

(134) Recruitment should at all times be based on the

principle of competitive merit.

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Section 4: Relationship with and Responsibility to

Civilian Authority


Guyana Fire Service’s relationship with, and

responsibility to, civilian authority.

Responsibility

The Minister of Home Affairs holds executive responsibility

for the Guyana Fire Service (GFS). The Chief Fire Officer has the

statutory authority to command and superintend the GFS but the

Minister is statutorily empowered to give him general orders and

directions to which his authority to command and superintend is

subject. The Chief Fire Officer must exercise his power of

command and superintendence to accord with, and to give effect

to, any such ministerial order or direction. Section 12 (1) of the

Act provides that: “The Chief Fire Officer shall, subject to the

general order and direction of the Minister have command and

superintendence of the Service….” Although the Minister does

not have the internal power of command and superintendence,

he has the executive authority to influence, command and

superintendence by the Chief Fire Officer by the issuance of

general orders or directions.

The Minister is also empowered to make regulations

relating to a number of matters affecting the GFS. Section 28

provides:

The Minister may from time to time make regulations relating to all or any of the following matters:

(a) the admission of members into the Service, and the period of service and training of the men belonging to the same;

(b) the scale of issue, and the type of uniform to be worn by, the hours of training and exercise of, and the distribution of duties among, the members of the Service;

(c) the speedy attendance of members of the Service with engines, fire escapes, fire boats, and all necessary equipment on the occasion of any alarm of fire;

(d) for the attendance of members of the Service with or without engines, fire

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escapes, fire boats and all necessary equipment on the occasion of any call for the special services of the Service;

(e) the maintenance of the Service in a due state of efficiency;

(f) the hours of duty and leave of absence of members of the Service;

(g) the ranks, pay and allowances of members of the Service;

(h) generally for the better carrying out of the provisions of this Act.

It can be seen that Parliament has empowered the Minister to

make wide-ranging regulations for the admission, training,

discipline, conditions of service and functional efficiency of the

GFS. As subsidiary legislation, such regulations uniformly apply

to the general membership of the GFS. The Minister, in

consonance with his executive responsibility, is accountable to

the National Assembly for the proper administration of the GFS.

Accountability

In order to allow members of the GFS to perform their

statutory duties and functions free from fear of incurring criminal

or civil liability, Parliament has immunised them against liability

for acts done in good faith in the course of such duties. Section

23 provides:

No member of the Service acting bona fide in the exercise of powers conferred upon him under this Act shall be liable for any damage or for any act done under this Act.

It should be noted that the immunity conferred under section 23

is immunity not from the curial processes but from liability. This

means that any claimant must satisfy the court that the

serviceman was not acting in good faith in the exercise of powers

conferred upon him under the Act. To succeed, the claimant

must prove either that the act causing damage was contrary to

the Act or, if within the parameters of the Act, was not done in

good faith.

Parliament has sought to balance the public interest of the

GFS with the private interest of individuals who may suffer

damage from acts done by members of the GFS. Despite the

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immunity conferred upon members of the GFS under section 23,

members of the GFS are still accountable to the court for

unlawful acts and mala fide acts. Only lawful acts done bona fide

are covered by section 23.

Insubordination and neglect of duty by members of the

GFS are not merely departmental disciplinary offences under

regulation 54 of the Police Regulations but are also criminal

offences under section 27 of the Act since section 27 states:

Any member of the Service who neglects or refuses to serve or refuses to obey any lawful command, shall be liable on summary conviction to a fine of nine thousand seven hundred and fifty dollars.

Thus, members of the GFS may be charged and placed

before the courts for refusing or neglecting to serve, or refusing

to obey a lawful command. To this extent, discipline is a matter

of public accountability.

Authority

Under section 10 A, the Chief Fire Officer may appoint fit

and proper persons to be fire officers and firemen. But such

appointments are made by him as if he were a delegate of the

Public Service Commission.

The Chief Fire Officer is also solely responsible for

promotion below the rank of sub-officer but promotion to the

rank of sub-officer is made only with the approval of the Minister.

Under paragraph (1) of the Fourth Schedule to the Fire Service

Regulations, “promotion” means “promotion to any rank of

subordinate fire officer” and, under paragraph 2:

All promotions shall be made by the Chief Fire Officer provided that promotions to the rank of sub–officer shall be made only with the approval of the Minister.

The Chief Fire Officer, in consonance with paragraph 2, promotes

up to the rank of section leader which is immediately below that

of sub-officer, without ministerial approval. However, the

Commission questions the legal validity of paragraph (2) in so far

as it purports to empower the Chief Fire Officer as delegate of

the PSC to make promotions to the rank of sub-officer only with

239

the approval of the Minister rather than the PSC. This appears to

impose a ministerial fetter on the authority of the PSC since the

Chief Fire Officer is really exercising the delegated authority of

the PSC itself.

According to the presentation made by the GFS:

Promotions to the rank of leading firemen/women is [sic] by the Ministry of Home Affairs upon the Chief Fire Officer’s recommendation. Hence, promotion to Section Leader and other Senior Ranks are [sic] made with the approval of the Public Service Commission.

The Commission does not accept the accuracy of this aspect of

the presentation and is advised that, since regular members of

the GFS are public officers, promotions must be made by the PSC

or its delegate.

The Commission finds it perplexing that promotion to the

rank of leading firemen can be made by the Ministry of Home

Affairs. So, too, the Commission is perplexed that promotion to

Section Leader is made with the approval of the PSC since

paragraph (2) of the Fourth Schedule provides for any promotion

to any rank below that of sub-officer to be made by the Chief Fire

Officer who is a delegate of the PSC.

The Commission has already drawn attention to regulation

28 which provides that regular members of the GFS are subject

to the Regulations and General Orders which regulate the service

of public officers but only in so far as the Regulations made by

the Minister under the Act are silent. As members of a disciplined

service which is concerned with internal security and Public

Safety, they fall primarily under the Fire Service Regulations and

only secondarily or residually under the Regulations and General

Orders applicable to public officers.

Recommendation:

With regards to “Relationship with, and

Responsibility to, Civilian Authority” in the GFS, the Commission

recommends the following:

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(135) The promotion policy must be regularised to be

consistent with constitutional changes, so that the PSC or

its delegate is not fettered by the acts of the Ministry of

Home Affairs.

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Part 4

The Guyana Prison Service

242



changing context of the functions and operations of the

Guyana Prison Service, taking into consideration national

and international developments.

The Guyana Prison Service (GPS) was established under

section 4A of the Prison Act, Chapter 11:01, as a public authority,

but there is no provision in the Act which specifically sets out or

outlines its essential functions. Parliament may not have seen it

desirable to do so because the GPS simply executes court orders

for keeping offenders or alleged offenders safely and securely in

custody.

Functions

It can therefore be said with some justification that the

core function of the GPS is ensuring the safe and secure custody

of persons in the prison system in accordance with the orders of

the courts. It is apposite to note that the GPS in its presentation

stated that:

The core function of the Guyana Prison Service is to ensure the safe custody of the offenders who have violated the law of the land and are placed in physical confinement (Prisons) in order to protect the society.

That assessment of the core function of the GPS is limited

because the courts frequently remand unconvicted persons, who

have not been granted or cannot provide bail, into the care and

custody of the GPS. Whether or not persons are committed to

prison to protect society is an issue with which the GPS ought not

to concern itself since the purpose or object of sentencing is a

matter purely for the court and not the Prison Service.

The Act is principally concerned with the establishment of

a prison service as a necessary adjunct to the criminal justice

system and regulating that service to safeguard the public

interest and welfare. Both free individuals of society and those in

confinement are catered for since, despite their incarceration,

prisoners remain part of society. The preamble to the Act reads:

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An Act to make better provision for the Regulation of Prisons.

Therefore, apart from its core function, the GPS discharges

such statutory duties and functions which are ancillary thereto.

Personnel

The involuntary nature of prisoners’ incarceration demands

security personnel and, as the prison population grows, there

ought to be a commensurate increase in the actual and

authorised strength of security personnel.

The GPS has not complained that the authorised strength

of its security personnel is insufficient to cope with the number of

prisoners. However, the actual strength of 369 lags behind its

authorised strength of 452, reflecting a deficit of 83 officers.

This translates into a shortage of over 18%. This shortage exists

although the actual strength of Assistant Prison Officers matches

its authorised strength.

The Commission has drawn two inferences from this state

of affairs. First, the GPS is making serious efforts to ensure that

it has a sufficient number of frontline personnel; and second,

persons are being recruited, presumably out of necessity,

although they do not satisfy the qualifications criteria.

Undoubtedly, such practices will impact negatively on the basic

training programme of the GPS. The Commission was not

surprised, therefore, when the GPS in its presentation stated:

The greatest challenge to the training programme, however, is the recruiting of persons with the requisite qualifications/academic ability.

The Commission therefore recommends that timely efforts

be made, within the constraints of available budgetary

resources, to increase the salaried and non-salaried benefits

currently accorded to prison officers in order to attract suitably

qualified applicants. In a study of the prison system by British

consultants in 2002, it was observed:

The staffing establishment was set some time ago and is out of date. Yet even these figures have never

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been realized. The low status and poor pay and conditions of the prison service make it difficult to recruit staff of the right quality and then to train and develop them. The high proportion of women frontline staff reflects this. An encouraging feature is the cadet scheme but the numbers recruited in this way are inevitably very small.

Assistant Prison Officers

The Commission was informed that the post of Assistant

Prison Officer has been created administratively to provide a

qualitative alternative in the absence of suitably qualified

applicants to perform functions of a security nature. The

Commission’s view is that such a sacrifice of quality for quantity

may be justified when qualified security personnel are in

critically short supply but that, even so, such a practice carries

with it inherent weaknesses and potential dangers.

Since the post is not created or recognised by the Act, the

appointment of Assistant Prison Officers is not subject to the

Public Service Commission. They are merely contractual

employees in the GPS who have no statutory duty and,

consequentially, no statutory power, privilege or immunity. They

cannot therefore independently perform the statutory duties of

Prison Officers and can do no more than play an auxiliary role to

Prison Officers in the discharge of their statutory duties.

To utilise such employees to perform statutory functions

beyond the role of auxiliaries to Prison Officers is, therefore, not

only ultra vires the Act but wholly unwise and fraught with risks.

It is the Commission’s view that as more suitably qualified

persons are recruited as Prison Officers, there should be

commensurately less reliance on the services of Assistant Prison

Officers.

It would certainly impose considerable strain on the limited

training resources of the GPS to enlist unqualified personnel as

Assistant Prison Officers in the hope that training would

eventually produce efficient Prison Officers albeit without the

requisite statutory entry qualification. However, since the

authorised and actual strength of Assistant Prison Officers is 196

in comparison with the authorised strength of only 92 Prison

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Officers, it does appear that the GPS has committed itself deeply

to such a course of action.

The Commission is concerned that if this practice is

allowed to continue, the quality of security personnel of the GPS

can become consistently diluted unless its limited training

resources can consistently sustain the challenge it has

undertaken. The Commission therefore recommends that the

better option would be to offer a remuneration package which

would attract suitably qualified persons to seek enlistment as

Prison Officers rather than continue to place heavy reliance on

auxiliaries.

Rather than increase the total authorised strength of

security personnel, the Commission is of the opinion that the

authorised strength of Prison Officers should be increased and as

the situation improves vis-à-vis the ratio of officers to prisoners

there should be less reliance on the employment of Assistant

Prison Officers.

Criminal Law Review Committee

The Criminal Law Review Committee has identified a

number of shortcomings in the practices of the criminal justice

system which have contributed significantly to the problem of

overcrowding (mainly Georgetown Prison) and has made

appropriate recommendations. The Director of Prisons informed

the Commission that these recommendations have had a

positive effect in reducing the overcrowding. A co-ordinated and

sustained collaborative effort between the judiciary and the GPS

needs to be kept in focus at the latter’s instance since it is the

prison system which suffers directly from particular shortcomings

in the criminal justice system.

At this juncture, the Commission finds it necessary to set

out in extenso some of the recommendations of the Criminal Law

Review Committee in its interim report with which it largely

agrees and wishes to adopt the following:

(1) Priority should be given to the expeditious hearing of cases in respect of which prisoners are in custody awaiting trial. Top priority should be given to cases of murder (or treason) since the grant of bail is a virtual impossibility.

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(2) Where persons have been committed to stand trial in the High Court and have not been granted bail, the preparation of the depositions should be a matter of priority. Top priority should be given to committals for murder (or treason).

(3) Where persons have been indicted for offences and have not been granted bail, officers of the DPP office should make every effort to present their indictments before judges for trial at assizes. Again, top priority should be given by officers of the DPP to murder (or treason) cases.

(4) Magistrates should forthwith cease the unlawful practice of remanding without bail or with high bail with a distant remand date for the purpose of forcing a plea of guilty. This is a perversion of justice. Magistrates guilty of this practice should be disciplined.

(5) Bail should not be refused for minor offences which do not carry a custodial sentence.

(6) Due reverence to and compliance with Article 139 (4) mandate the grant of bail where the prisoner has not been tried within a reasonable time.

That Committee opined that an active Parole Board and a greater

use of community service and suspended sentences by the

criminal courts can significantly contribute to alleviating the

problem of overcrowding. It further recommended that

legislative sanction to “plea bargaining” should be considered as

a measure which can also expedite the disposal of criminal

cases.

Significantly, that committee was of the view that judicial

officers must be cognisant of the physical conditions of the

prisons since such awareness ought to inform the exercise of

their discretion in ordering incarceration. Since their decisions

and actions impact very directly on the prison system, judicial

officers and other functionaries must regard the prison system as

an indispensable adjunct of the criminal justice system and must

be always cognisant of, and sensitive to, the conditions and

resources of the prisons. Such knowledge and sensitivity are of

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crucial importance to a rational relationship between justice and

incarceration.

In sum, the Commission is of the view that the practical

recommendations of the Criminal Law Review Committee, if

consistently implemented, would alleviate the degree of over-

crowding in the prisons.

There are other intrinsic mechanisms that can be utilised

beneficially to the prisoners and the prison system. These

include, but are not limited to, buying prison time with voluntary

work and exemplary conduct.

Security

The Commission has received evidence that there is an

increase in the number of violent prisoners. This poses a security

threat both to the prison staff and fellow inmates. Apart from the

notorious case of the five escapees who callously killed and

seriously injured prison officers in their successful escape, there

are cases in which prisoners killed or wounded fellow inmates.

The prisons must be appropriately equipped to prevent such

occurrences and deal with such prisoners.

The GPS in its submission stated:

It must be noted that the security equipment available in the Guyana prisons do not match the security needs of the increasingly violent, aggressive and dangerous inmates population. The three major prisons (Georgetown, Mazaruni and New Amsterdam) are most vulnerable to security threats such as escapes, riots, hostage-taking and fires.

The changing nature of prisoners’ character and the increasingly violent environment necessitate the quality and type of weapons, communication system and technology (monitoring cameras, scanners and other devices) be improved to prevent /suppress any threat to the security of those locations.

The Commission recognises the need for adequate monitoring

devices and warning technology to be installed in prisons such as

the Georgetown, New Amsterdam and Mazaruni Prisons to

enhance their physical security capacity and capability.

However, while the Commission recognizes the necessity for

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adequate, reliable and accurate firearms, it is mindful of section

13(6) of the Prison Act which provides:

The use of firearms under this section shall be as far as possible to disable and not to kill.

The Commission therefore is inclined to the view that the type of

firearms provided to the GPS should be restricted to firearms

which can be employed discriminately in target selection.

However, it wishes to emphasise that, in addition to monitoring

devices and warning technologies and appropriate firepower,

there is need for periodic checks of prisoners and prisons for

weapons, implements for breaking out and other unauthorised

items.

Rehabilitation

The Prison Act and Rules made thereunder do not place

emphasis on the training of inmates so that they can become

responsible, industrious and useful citizens on their discharge.

Instead, they place greater focus on security and discipline.

However, an idle prisoner is a potentially dangerous one and it is

in furtherance of security and discipline that there should be a

constructive regime of activities geared to beneficially occupy

prisoners’ time.

Prisoners should be encouraged to spend their prison time

in learning useful skills such as masonry, carpentry, joinery,

agriculture, or, in reading books e.g., in electronics and

mechanics.

It will be beneficial to both prisoners and society if the GPS

could secure the assistance of the relevant State institutions and

non-governmental organisations to provide instructors and

teachers on a periodic basis. While the prison should be a place

of incarceration, it should not be a place which inhibits human

development. Nor should it be a place where criminals can meet

and learn from one another to become more proficient and

versatile in crime. Otherwise, judicial orders for compulsory

imprisonment would not only fail to achieve their desired

objective but would be counter-productive both to prisoners and

society.

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In order to protect vulnerable inmates from other inmates,

the Prison Act mandates separations in certain cases but does

not prohibit separation in desirable cases. Section 30 provides:

(1) No male prisoner shall be detained in the same part of any prison as any female prisoner.

(2) No civil prisoner (so far as possible) shall be detained in the same part of any prison as any criminal prisoner.

(3) No young prisoner shall be detained (so far as possible) in the same part of any prison as any other prisoner.

(4) No person awaiting trial or remanded shall (so far as possible) be detained in the same part of any prison as any other prisoner.

Such mandatory separations are intended to minimise physical

abuses and protect vulnerable categories of prisoners from the

negative influences of other categories. Apart from mandated

separations under section 30, the GPS is not prohibited from

separating other categories of prisoners to prevent dangerous,

unhealthy and unnatural associations.

The Commission was concerned particularly with the

protection of vulnerable prisoners from the abusive actions and

designs of other prisoners and with the prevention of acts of an

unnatural nature. The Director of Prisons has, however, assured

the Commission that the GPS is alert to such kinds of misconduct

and has put in place a system of preventative action whereby

prisoners are screened and appropriate action taken.

Accommodation

Given the location of the Georgetown Prison and its

proximity to busy streets on all sides, there is no room for

structural expansion to cope with any sizeable increase of the

prison population. Therefore, any increase will require additional

accommodation in other prisons which are capable of structural

expansion or in the construction of other prisons.

The Commission, as mentioned before, is of the view that

efforts can be made by judicial officers to reduce the prison

population by the utilisation of available appropriate coercive

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remedies other than imprisonment without compromising public

justice. The Commission recognises that such efforts, subject to

the demands of public justice, can be unsuccessful.

Nevertheless, the solution does not lie in overcrowding the

Georgetown Prison to the extent that it becomes dangerously

unmanageable and an impediment to social reform efforts but

rather in expanding the capacity of other prisons which have

room for expansion, where possible. If not, additional prisons will

have to be constructed.

The Mazaruni Prison has considerable room for expansion

which renders the construction of a new all-male prison

unnecessary. Attention should be given to expanding the

Mazaruni prison and providing it with human and material

resources for greater prison intake as the solution to the

overcrowding problem in the Georgetown prison.

The Commission is not persuaded that the Georgetown

Prison ought to be abandoned since, excepting the problem of

over-crowding, its location can be functionally convenient for

certain categories of prisoners. However, the Commission is

convinced that it needs major rehabilitation and its facilities need

to be improved and modernised. Whatever option is preferred

this should be based solely upon its economic feasibility.

It appears to the Commission from a visual inspection of

the interior of the prison that efforts at rehabilitation have been

very piece-meal and have not achieved much. The interior of the

prison reveals its colonial past and forced spasmodic efforts at

greater inmate accommodations with enhanced security

measures. Resources must, therefore, be made available for its

modernisation if its status as a prison is to be maintained.

Since the New Amsterdam Prison is the only prison in

Guyana which accommodates female prisoners, the escorting of

female remanded prisoners to and from this Prison to courts in

Georgetown and further afield, tends to strain the limited

resources of the Guyana Police Force which usually assists in the

performance of such escort duties.

On its visit to the New Amsterdam Prison, the Commission

heard complaints from female prisoners awaiting trial that the

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Police, on many occasions, default in these duties resulting in

their incarceration being unduly prolonged. No doubt, such

defaults are due to the fact that New Amsterdam is far removed

from the respective courts. The problem is more pronounced

when the court is in some interior location.

The Commission is of the opinion that there should be a

female remand prison in the vicinity of Georgetown which has

the largest number of courts. This would considerably reduce the

difficulty of having to escort all remanded female prisoners to

and from New Amsterdam. Those remanded female prisoners

can be kept either in New Amsterdam or in Georgetown

depending on which prison is closer to the respective court.

The Commission has noted the problem-management style

of the Director and his management team and is quite satisfied

that despite a serious shortage of qualified staff; a surfeit of

inmate population relative to prison accommodation; an increase

of violent, aggressive and dangerous prisoners; limited security

equipment and limited resources, he has managed to

satisfactorily cope with the very difficult task of making the

prison relatively safe for both staff and inmates at the same

time. He has sought to develop a constructive regime of

activities geared to the reforming of inmates into becoming

responsible, industrious and useful citizens upon their discharge

from the prisons.

The Commission is inclined to the view that he will be

greatly assisted in his tasks should he be granted more

autonomy (particularly in recruiting and promotion) and receive

the co-operation of all the related agencies such as the

Magistracy and Judiciary, the DPP’s office, the Parole Board, the

Probation and Welfare Department, the Ministry of Home Affairs

and government institutions which provide technical training and

instruction.

Recommendations:

With regard to the “Functions and Operations” of the GPS,


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(136) As the prison population increases, there must be a

commensurate increase in the actual and authorised

strength of the security personnel of the GPS.

(137) Timely efforts should be made, within the constraint of

available budgetary resources, to increase the salaried

and non-salaried benefits currently accorded to prison

officers in order to attract suitably qualified applicants.

(138) The GPS should desist from the practice of utilising

Assistant Prison Officers to independently perform

functions of a security nature or any statutory function

and should confine them to the role of auxiliaries to

Prison Officers.

(139) Commensurate with the recruitment of more suitably

qualified persons as Prison Officers, there should be less

reliance on the services of Assistant Prison Officers.

(140) The recommendations of the Criminal Law Review

Committee approved by the Commission in this Report

should be implemented by the Judiciary, Magistracy and

other relevant public authorities.

(141) Adequate monitoring devices and warning technology

should be installed or upgraded in prisons such as

Georgetown, New Amsterdam and Mazaruni to enhance

their physical security capacity and capability.

(142) Firearms provided to the GPS should be restricted to

firearms which can be employed discriminately in target

selection.

(143) In addition to monitoring devices, warning technologies

and appropriate firepower, there be periodic checks of

prisoners and prisons for weapons, implements for

breaking, and other unauthorised items.

(144) There should be a constructive regime of activities

geared to beneficially occupy prisoners’ time such as

learning useful skills e.g. masonry, carpentry, joinery,

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agriculture; or, in reading books e.g. in electronics and

mechanics.

(145) In this regard the GPS should secure the assistance of

the relevant State institutions and non- governmental

organisations to provide instructors and teachers on a

periodic basis.

(146) The Mazaruni Prison should be expanded and provided

with the requisite human and material resources for

greater prison intake as a solution to the overcrowding

problem in the Georgetown Prison.

(147) The Georgetown Prison should be rehabilitated and its

facilities improved and modernised if found to be

economically feasible.

(148) There should be a female remand prison in the vicinity of

Georgetown.

(149) The Director of Prisons should be given more autonomy

generally and in relation to recruitment and promotion in

particular.

(150) The Director of Prisons should be given the co-operation

of all the related agencies such as the Magistracy and

Judiciary, the Parole Board, the Probation and Welfare

Department, the Ministry of Home Affairs and

Government institutions which provide technical training

and instructions.

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composition and structure of the Guyana Prison Service.

The Guyana Prison Service (GPS) was established under

section 4A of the Prison Act, Chapter 11:01, as a department of

the Government. It falls under the executive responsibility of the

Minister of Home Affairs whose functions under the Act include

the following:

1. issuing orders of an executive nature to the Director

of Prisons;

2. making rules for good management and governance

of the prisons and the prisoners under section 56 of

the Act;

3. carrying out the general objects of the Act.

Director

The administrative head of the GPS is the Director of

Prisons with the Deputy Director of Prisons as his principal

assistant. Section 5 (1) provides:

There shall be a Director of Prisons and a Deputy Director of Prisons.

Section 5A provides:

The Deputy Director shall act as principal assistant to the Director in the performance of his duties and shall have power, during the absence or incapacity of the Director, or when so authorised by him, to do or suffer any act or thing which may by law be done or suffered by the Director.

To enable the Deputy Director to be of maximum

assistance to the Director, section 5A allows him to exercise the

powers of the Director during his absence or incapacity of the

Director and permits the Director to share with his Deputy his

statutory powers with his Deputy which, can be exercised by the

latter at any time.

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The Director is charged with the general administration of

the prisons and the control and direction over the prison staff but

this authority, however, is circumscribed by whatever executive

orders are given by the Minister. Section 4 (1) provides:

Subject to the orders of the Minister, the general charge and administration of prisons and the control and direction of the prison staff shall be vested in the Director who may make such transfers, and direct the employment and distribution of the prison staff as he may think fit.

The Director cannot therefore exercise his administrative

authority inconsistent with, or in disregard of, the executive

orders of the Minister. On the contrary, his authority must be

exercised to give effect to such orders. It should be noted that

the Director can issue Standing Orders not inconsistent with the

Act or the Prison Rules made by the Minister under section 57.

The making of Standing Orders is a useful tool for giving effect to

administrative decisions of a non-temporary nature.

Prison Officers

Parliament has not left it to the administrative initiative of

the Director to decentralise or devolve administrative authority

on the officers in charge of the various prisons but has legislated

for such devolution to the extent that no orders retaining control

have been issued by the Director. Section 4(2) provides:

Subject to the orders of the Director, the administration of each prison and the control and direction of the prison staff attached thereto shall be vested in the Senior Superintendent, the Superintendent or the Assistant Superintendent in charge of such prison.

In addition, section 8 provides:

Subject to the orders of the Director, every Senior Superintendent, Superintendent and Assistant Superintendent shall have, in relation to the prison of which he has charge, all the powers, duties, rights and privileges of the Director.

Accordingly, there is no necessity for the officer in charge

of any prison to seek the approval of the Director or his Deputy

in making administrative decisions respecting that prison.

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Sections 4(2) and 8 confer full administrative authority to officers

in charge of prisons to the extent that there is no applicable

superior order issued by the Director or his Deputy.

Rules

But while the Act provides for such administrative

authority, by Rule 20 of the Prison Rules, the Minister has

specified the responsibilities of the officers in charge of prisons.

This Rule provides that: “the officer in charge of a prison

(hereinafter referred to as “the officer in charge”) shall hold a

rank not lower than that of Assistant Superintendent and shall be

responsible for—

(a) the good order, discipline and management of the prison under his control;

(b) the safe custody of the prisoners;

(c) the care of all buildings and other property of the prison;

(d) the economical use of money and stores;

(e) ensuring that advantageous use is made of the labour of prisoners;

(f) the keeping of such books and the making of such returns as may be required,

(g) ensuring that every prisoner is released on the day on which he is entitled to release;

(h) ensuring that male and female prisoners are kept apart and that no key of the male division can be used to unlock any door or gate of the female division of the prison.

Other duties of these officers are detailed in Rules 21-45. Even

though officers in charge of prisons have authority to administer

their respective prisons, this authority is subject to the orders of

the Director, if any, and the ministerial Rules, which must take

precedence. The Director cannot issue orders which are

contrary to exisiting Ministerial Rules.

While the Act provides for a single Deputy Director, the

numerical strength of the Prison Staff is left to executive or

administrative discretion. Section 5(2) provides:

There shall be—

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(a)so many Senior Superintendents of Prisons, Superintendents of Prisons and Assistant Superintendents of Prisons, and

(b)so many prison officers and clerks

as may be necessary for carrying into effect the provisions of this Act.

Such executive or administrative flexibility allows for expeditious

decisions in increasing or decreasing the numerical strength of

the GPS to meet changing conditions in the prisons. Apart from

the Director and his Deputy, the authorised strength of the GFS

stands at 450, to service 5 prisons with an inmate population of

about 1600.

Duties

It should be noted that the Act allows for clerks to provide

clerical and office support service. However, such clerical staff

are not prison officers (see section 2) and do not have the duties,

powers, authorities, immunities and privileges which attach to

Prison Officers. It is significant that the legislature did not

contemplate or intend that Prison Officers should be assigned

ordinary clerical duties which have no relevance to their training

and status as Prison Officers.

Authority

Every Prison Officer, while acting in the execution of

his or her duty, is ex officio conferred with the powers,

authorities, immunities and privileges of regular members of the

Guyana Police Force. Section 12 provides:

Every prison officer while acting as such shall have by virtue of his office all the powers, authorities, immunities and privileges of a constable appointed under the Police Act for purposes of his duty as such prison officer.

Correspondingly, section 13(7) of the Act allows for security

assistance by members of the GPF to the GPS and confers upon

such members of the GPF all the powers and privileges granted

to prison officers under section 13 in relation to the use of

weapons i.e., firearms in the course of their duties. Section 13(1)

provides:

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Every prison officer may use weapons against anyprisoner escaping or attempting to escape:

Provided that resort shall not be had to the use of any such weapons unless such officer has reasonable grounds for believing that he cannot otherwise prevent the escape;

while section 13(7) provides:

Every member of the Police Force who is for the time being serving in the capacity of an escort, or of a guard in or around any prison or lock-up, for the purpose of ensuring the safe custody of any prisoners or persons detained in a prison or lock-up, shall be deemed to have all the powers and privileges granted to prison officers under this section for the purpose of his duties in relation to such prisoners or persons.

In this regard any joint training and instruction classes on

the use of firearms between the Guyana Police Force and the

GPS must take this section into account.

Assistant Prison Officers

The Commission noted that the GPS has 196 Assistant

Prison Officers (who are not public officers and are non-

pensionable) as against only 83 Prison Officers out of an

authorised strength of 92. While these Assistant Prison Officers

perform mainly frontline security functions, they do not have the

statutory duties, powers, authorities and privileges with which

prison officers are clothed. Although section 2 defines “Prison

Officer” as meaning: “any person holding an office or performing

a duty in or in connection with a prison, but does not include a

person appointed to perform clerical duties only,” it may be

argued that such a definition is sufficiently wide to embrace

Assistant Prison Officers.

It must be noted, however, that Assistant Prison Officers

were not contemplated by the Act and therefore have no

statutory duties. Moreover, sections 10A, 12A and 13A which

relate to disciplinary enquiries and punishment for departmental

offences against “members of the subordinate staff”, do not

apply to Assistant Prison Officers simply because the disciplinary

powers conferred on the Director, Deputy Director and other

senior officers are exercised by them as delegates of the Public

Service Commission and the Public Service Commission has

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jurisdiction only over its appointees i.e., public officers. Assistant

Prison Officers cannot be considered public officers for the

purposes of some provisions of the Act but not for the purposes

of sections 10A, 12A and 13A. The Commission’s view is that

they are not public officers.

It is clearly undesirable that Assistant Prison Officers, who

perform mainly frontline security functions as employees of the

State, are not conferred with the statutory authority, powers,

privileges and immunities which attach to Prison Officers. This

state of affairs is fraught with the dangers and risks which attach

not only to unlawful functional authority but also to sub-standard

functional performance.

The Commission does not recommend that in the interest

of regularisation, the definition of “Prison Officer” in section 2 be

amended to include “Assistant Prison Officers” since such an

amendment would necessarily entail not merely a reduction of

the qualification requirements for Prison Officers but also their

enlistment by the Public Service Commission.

The Commission is minded to support the elevation of

those Assistant Prison Officers, who have demonstrated sufficient

proficiency, to the rank of Prison Officer. This in turn will entail a

considerable increase in the authorised strength of Prison

Officers. There should then be a gradual reduction of the

authorised strength of Assistant Prison Officers constrained only

by the demands of necessity until these Officers are eliminated

from the structure of the GPS. A moderate increase in the

salaried and non-salaried benefits to Prison Officers and other

subordinate officers can do much to ensure the timely

completion of this process.

The Act does not authorise the Director to make

appointments to the GPS since this is a function of the Public

Service Commission under article 201 of the Constitution.

However, it is not necessary for the Public Service Commission to

be directly involved in all such appointments and it may be more

convenient and expedient for the Commission to delegate to the

Director its authority to appoint and promote up to the

subordinate staff level of the GPS i.e., up to officers below the

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rank of Assistant Superintendent. Such delegation may enable

the Director to make desirable strategic adjustments to the lower

rank structure without unnecessary delay. Since efforts at

recruitment are made by the GPS and not by the PSC and

recruits in recent times generally enter the Service at the level of

Assistant Prison Officer, delays in promotion of the subordinate

staff, who are dependent upon the PSC for promotion, can

stultify the efforts of the GPS to enlist recruits. The

recommended delegation of authority by the Public Service

Commission to the Director will ensure that promotions up to the

subordinate staff level are promptly made. Recruitment can

then take place to fill vacancies created at the lower level

without unnecessary delay which will greatly facilitate better

strategic staffing.

Prison Locations

The Minister is empowered under section 3(1) to establish

prisons by declaratory orders. At present, there are 5 prisons,

viz:

(1) Georgetown Prison: this is the main admission

and dispersal prison in Guyana. This prison

accommodates all categories of male prisoners-

remanded, committed and convicted (including

condemned prisoners and appellants).

(2) Mazaruni Prison with annex, Sibley Hall: the

main block accommodates adult male prisoners

with previous convictions while the annex

accommodates the young and first offenders.

(3) New Amsterdam Prison: this is the only prison

in Guyana which accommodates female

prisoners. This prison, however, accommodates

both male and female prisoners and, in fact, its

prison population comprises largely male

prisoners.

(4) Lusignan Prison: this prison caters essentially

for prisoners serving sentences of less than 18

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months and to prisoners who have only a short

part of their sentences remaining to be served.

(5) Timehri Remand Centre, which now caters for

prisoners whose sentences are nearing

completion.

The Georgetown Prison is one of two prisons established by

ministerial order under section 3(2). Although it accommodates

male prisoners only, its inmates comprise about half of the total

prison population. It can justifiably be viewed as the central

prison in Guyana. Its functional dominance is not due simply to

the number of prisoners it accommodates but also to the fact

that all categories of male prisoners (remanded, convicted,

committed, long-term and death-penalty convicts) are therein

housed. In fact, most of the high-security-risk prisoners are kept

at this prison. As a result of such functional dominance, it is

essential that the officer-in-charge should be the most capable of

the Senior Superintendents.

The Commission notes that the authorised strength of the

rank of Senior Superintendent is 4 even though the actual

strength is only 2. This shortage of Senior Superintendents has

possibly been caused by the delay in the constitution of the

Public Service Commission. The Public Service Commission has

since been constituted and is now functional and the Commission

is therefore hopeful that current vacancies at this level will be

swiftly addressed.

The Mazaruni Prison accommodates convicted persons

and, because of its interior location, it should be utilised

principally for the accommodation of convicts who have received

relatively long prison sentences. This facility should be

rehabilitated, resuscitated and appropriately upgraded to

perform its intended function. The Commission is of the view that

there is grave danger in having too many high-security-risk

prisoners in the Georgetown Prison. This risk can be considerably

minimised if those convicted among such prisoners are

accommodated at Mazaruni Prison. It is more than enough that

the Georgetown Prison is used to accommodate high-risk

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prisoners who are on remand awaiting trial and other remand

and short term prisoners.

On its visit to the Mazaruni Prison, the Commission

observed that it is being rehabilitated and structurally expanded

to accommodate a greater number of persons than it customarily

accommodates. If it is given an adequate number of prison

officers for effective supervision, the Commission is of the

opinion that the Mazaruni Prison offers the greatest prospect for

relieving the congestion which currently obtains at the

Georgetown Prison and for prisoners to be engaged in

constructive activities such as agriculture, tailoring, joinery and

even sports. The Commission hopes that the rehabilitation and

structural expansion of the Mazaruni Prison will take into account

an improvement in the supply of electricity — whether by solar

energy or otherwise.

The Timehri Remand Centre was intended to accommodate

remand prisoners who do not pose a high degree of security risk.

From the presentation made by the GPS, this prison is being

used to accommodate prisoners whose release is imminent. In

the light of its location, the Commission agrees with its current

usage. Since the prisoners whose release is imminent would not

be as high-risk as other prisoners, the main objectives of the GPS

should be their rehabilitation and reintegration into society. The

Timehri location is ideally suited for soon-to-be released

prisoners.

At the Lusignan Prison, the level of security need not be as

high as at the Georgetown or Mazaruni Prisons but it should not

be as low as that of the Timehri Prison. Like the Timehri Prison,

the focus should be on rehabilitation and the re-integration of its

inmates into society.

The Sibley Hall annex accommodates young offenders.

Here, the emphasis should be on proper supervision, guidance,

education and the teaching of useful and relevant skills. This

location appropriately removes young offenders from the bad

influences of the other prisons to an environment conducive to

the reformation of young inmates.

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While the functional objectives of each prison should

determine the kind of personnel to be assigned thereto, the

Commission has noted that there is a disproportionate increase

in the female composition of the staff of the GPS. This is perhaps

due to recruitment problems; but the Commission wishes to

caution that the gender composition of the GPS should bear a

rational proportionality to the gender composition of the prison

population. The application of the principle of rational

proportionality to the recruitment policy of the GPS should not be

considered as constituting unlawful gender discrimination since

such a policy cannot be attributed wholly or mainly to the gender

of prospective applicants but wholly or mainly to the fluctuating

gender composition of the prison population and the peculiarities

of the functions and duties relevant to that population.

Since the prison population has increased over the years to

the extent that it became necessary to engage the additional

services of 196 Assistant Prison Officers, it is necessary to cater

for their upward mobility in the rank structure. This could be

achieved by increasing the authorised strength of the higher

ranks relative to the number of personnel at the bottom level

i.e., Assistant Prison Officer.

Medical Duties

Section 9 of the Act imposes upon the Chief Medical Officer

the duty of assigning to each prison, a government medical

officer who, on assignment, takes general control of the health

and medical care of the prisoners therein and its sanitation. The

medical officer must perform whatever duties are imposed upon

him by the Act or the Prison Rules. It appears that a government

medical officer may be assigned to more than one prison; but

each prison must have a government medical officer assigned to

it.

Even though such medical officers are required under the

Prison Regulations to report certain matters to the officer in

charge of the respective prisons, they are not part of the GPS

and fall under the supervision of the Chief Medical Officer and

the executive portfolio of the Ministry of Health. The Director of

Prisons has no administrative jurisdiction over medical officers.

They are not accountable to him. But the Director can himself, or

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through the Minister, express his concerns about their work

performance to the Chief Medical Officer or the Ministry of

Health.

The Commission observed that, while the infirmary at the

Mazaruni Prison is served by an in-house trained nurse

(Regulation 46) who works on a full-time basis, due to non-

compliance with Regulation 48, the nurse is constrained by

necessity to perform functions which properly falls within the

competence of a trained medical officer, e.g., diagnosing

ailments and prescribing and dispensing drugs. Such a state of

affairs poses a danger not only to the health of prisoners but to

the liability of the State. The Chief Medical Officer should be

alerted to his duty under section 9 of assigning a government

medical officer to each prison and to the duties of such assigned

medical officer under regulation 48.

The Prison Regulations mandate that each prison should

have its own infirmary staffed by properly trained officers

(regulation 46); but there is no requirement for the full-time

attendance of the Medical Officer. Regulation 48, however,

requires daily prison visits by the medical officer to see any

prisoner who is (a) sick (b) undergoing dietary punishment (c)

under a sentence of death and (d) to whom his attention is

specially directed. The Commission has received information

from prisoners that regulation 48 is not being complied with and

visits by medical officers are made no more than once or twice

per week. The Chief Medical Officer should be requested to take

remedial action to ensure that this statutory duty is performed

rather than neglected.

There may be an over–reliance on paramedics to perform

the functions of medical officers to the prisons due to the

shortage of qualified medical doctors for such assignments. The

Commission is of the view that it was in the contemplation of

Parliament that medical officers should be persons qualified to

perform serious operations (see regulation 53).

In this regard, it is instructive to note that the responsibility

for the health and medical welfare of prisoners and the sanitary

conditions of the prisons does not lie with the Minister of Home

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Affairs or the Director of Prisons but with the Ministry of Health

and the Chief Medical Officer. Failure by the Ministry of Health

and the Chief Medical Officer to ensure that the duty, imposed by

the Act, of regular attendance on prisoners by competent

medical officers is performed can attract liability for breach of

statutory duty under the Act.

Even though by virtue of section 7 of the Act the general

control of the health and the medical welfare of prisoners and

the sanitation of the prisons resides in the medical officers

assigned to the prisons by the Chief Medical Officer, by rule 37 of

the Prison Rules, all officers-in-charge of the prisons must ensure

that no sick prisoner is left without medical attention and that

the directions of the medical officers are at all times strictly and

carefully carried out.

Recommendations

The Commission is satisfied that the level of administration

of the prison system can be greatly increased by improved

recruitment and availability of resources. The efforts of the

Director and his management team are significantly stymied by

the limited authority of the Director to recruit and promote; the

lack of up-to-date security equipment; limited space and facilities

for accommodation of prisoners and for engaging them in

constructive activities, and, of course, an insufficient number of

qualified recruits.

The Commission recommends the following:

(151) Immediate attention should be paid to promoting

suitable Assistant Prison Officers to the next level; then

gradually reducing the ‘authorised strength’ of Assistant

Prison Officers and increasing the ‘authorised strength’

of Prison Officers, as a consequence.

(152) The Public Service Commission should consider

delegating to the Director of Prisons its appointment and

promotional function regarding subordinate staff.

(153) The risk of over-burdening the Georgetown prison with

too many high-security-risk prisoners should be reduced

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by the transfer of the convicted to the more commodious

Mazaruni Prison after completion of its physical

rehabilitation and structural expansion.

(154) Efforts should be directed to making the gender

composition of the prison staff rationally proportional to

the gender composition of the inmates.

(155) At the Timehri Remand Centre, where release of most

inmates is imminent, the GPS should emphasise their

rehabilitation and reintegration into society.

(156) The Chief Medical Officer must be apprised of his duty to

ensure that daily visits are made to prisoners by medical

officers, as required by regulation 48.

(157) Placement of staff members at specific prison locations

should relate to the functional objectives of that prison.

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balance within the GPS.

The coercive powers of prison officers relate to their prison

duties and therefore affect the welfare of prisoners rather than

the general population in any direct way. Ethnic balance in the

Guyana Prison Service cannot, and does not, assume the same

level of controversy and importance and, indeed, has not

provoked the same socio-political concern as it does in the case

of the Guyana Police Force and the Guyana Defence Force — the

remit of which directly relates to the protection and service to

the country as a whole. Moreover, no evidential basis exists to

lead to a finding of any general racially discriminatory practice

by prison officers in the performance of their duties which can

generate ethnic insecurity fears in any group of the prison

population. These two factors tend to diminish any urgency for

the need for ethnic balance in the GPS and therefore to limit the

room for justification for urgent positive efforts aimed at

achieving a greater level of ethnic balance in the GPS than that

which currently obtains.

However, adequate ethnic representation in all public

sector institutions is certainly desirable even if for the limited

purposes of reflecting the national ethnic composition and of

dispelling perceptions of ethnically discriminatory practices in

public sector employment.

The Director of Prisons in his presentation to the

Commission stated:

It is important to note that the Prisons Administration has never employed implicit and/or deliberate policy to prevent and/or frustrate the recruitment and retention of other ethnic constituents (non Afro-Guyanese). As a matter of fact, they were deliberately encouraged to remain in the Service.

The Commission has received no evidence or allegation that the

Prisons Administration or the Public Service Commission in its

recruitment or promotion policies for the GPS has discriminated

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against non-Afro-Guyanese. Yet, the current ethnic composition

of the prison staff is as follows:

Indo-Guyanese - 5%

Mixed-race Guyanese - 4%

Amerindian Guyanese - 1.5%

Afro-Guyanese - 89.5%

The statistical truth is, therefore, that Afro-Guyanese heavily

predominate in the GPS. Despite this, there is no perception

existing in the Guyanese society that this is a result of any

deliberate act of discrimination.

Recruitment

In his analysis of the current ethnic composition of the GPS,

the Director of Prisons stated:

Interviews with retired senior prison officers pointed out that Indian members of staff were seen as equals to their African colleagues in terms of competence and ability to execute assigned tasks within the prison, even though they were more inclined to work in the farms, medical, clerical and technical fields.

However, slow promotion opportunities and poor salaries were principal reasons why many of the Indian officers did not remain on the job. A significant point to note is that most of the Indian officers on joining the Service were already married and having children, unlike young African recruits. The salaries made it difficult for the Indian ranks to support this family structure. Hence they sought alternative employment and left the service.

It was noted that many of the Indian officers came on the job and at the same time having alternative income generating ventures in terms of family business, farming, rearing of cattle, swine and livestock and other micro enterprises. These income generating ventures gave them options in terms of employment and some were loathe to leave their families and investment when transferred, fearing their absence may bring about a failure of their investments. Hence, some opted to leave the Service.

A number of Indian officers also left the job because of intimidation from burly and aggressive prisoners who knew some were afraid and would threaten them, but this percentage was insignificant.

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The above analysis reveals at least the following four significant

points: (1) Indo-Guyanese are not unsuited to the duties of prison

officer and are equal in competence and ability to Afro-

Guyanese; (2) Indo-Guyanese are often deterred from making a

career of service in the GPS mainly because of too slow

promotion and inadequate salaries; (3) Indo-Guyanese assume

family responsibility at an early age and are generally not

attracted to employment which separates them from their

nuclear families; (4) Indo-Guyanese officers tend to engage in

other income generating ventures which often provide them with

a viable alternative to service in the GPS. The Commission has

already identified some or most of these factors as being

responsible for Indo-Guyanese under-representation in the other

Disciplined Forces.

Since the pre-dominance of Afro-Guyanese in the GPS does

not give rise to ethnic insecurity fears either among the general

population or among the prison population and has not given rise

to perceptions of ethnic discrimination in the recruitment and

retention policies of the GPS, the Commission was not too

troubled by the current under-representation reflected in the

prison personnel. However, it does appear that the

unattractiveness of the GPS to Indo-Guyanese in particular and

the under-representation of non-Afro-Guyanese in the GPS,

relative to their respective demographic strengths, must

negatively impact on its operational effectiveness or must

impose an unnecessary strain on its training resources. The

negative effects of this ethnic under-representation rather than

its causes were a matter of grave concern to the Commission

and some deliberate process must be put in train to reduce these

to a minimum.

It is clear to the Commission that the inability of the GPS to

attract qualified personnel in its recruitment drive has caused

the GPS to employ less qualified persons as Assistant Prison

Officers. These recruits have to be trained to perform the

functions designed for Prison Officers and severely strain the

training capacity and resources of the GPS.

If Indo-Guyanese and other non-Afro Guyanese were to

offer their services to the GPS relative to their demographic

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strengths, then there would have been no need to sacrifice

quality at the altar of quantity to satisfy the demands of

necessity. Such a dilution cannot be allowed to continue.

Otherwise, the same level of inappropriate competence and skill

will eventually seep into the upper echelons of the GPS. As in the

case of the other Disciplined Forces, there is some inescapable

causal relationship between ethnic imbalance and functional

limitations or inefficiency. The GPS, like the other Disciplined

Forces, simply cannot get the best personnel if a substantial part

(perhaps more than one half) of the qualified personnel do not

make themselves available to it.

It does appear that a better level of remuneration for

members of the Disciplined Forces can do much to attract the

services of qualified Guyanese of all ethnicities. The Commission

must point out that a distinction must necessarily be made

between public officers in the civil service and public officers in

the Disciplined Forces and therefore the common constraints

peculiar to the former ought not to fetter the Administration in

relation to the latter. Additional guidance in this respect may be

had by reference to the methodology adopted overseas.

The Commission wishes to highlight that officers in the

Disciplined Forces are expected to subject themselves to

standards that their counterparts in the civil service do not have

to endure. Breach of their particular disciplinary codes exposes

them not merely to departmental disciplinary action but very

often exposes them to criminal liability for offences specially

created by statute. In general, the statutory duties of officers in

the Disciplined Forces expose them to ever-present risks of

death or bodily harm and often even criminal prosecution. Such

risks can be minimised but not eliminated and an attractive

remuneration package may compensate for these distinctive

burdens.

Unlike their counterparts in the civil service, officers of the

Disciplined Forces are often legally prohibited from being

members of legitimate but partisan organisations such as trade

unions etc. so that the execution of their statutory duties may

not be affected by partisan interests. Their hours of work are

unlimited and they must respond to the call of duty at any time.

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They are more liable to location transfers than officers in the civil

service. Such significant differences which attend their conditions

of service must be reflected in their salaried and non-salaried

benefits in comparison with public officers in the civil service.

Recommendation

With regard to “ethnic balance” in the GPS, the Commission

recommends the following:

(158) Efforts to attract the services of qualified Guyanese of all

ethnicities should be bolstered by better levels of

remuneration.

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Section 4:Relationship with and Responsibility to

Civilian Authority


Guyana Prison Service’s relationship with, and

responsibility to, civilian authority.

The Guyana Prison Service (GPS) which has been

established under section 4A of the Prison Act, Chapter 11:01,

falls under the executive authority of the Minister of Home

Affairs. As the responsible Minister, he is accountable to the

National Assembly for the administration of the prisons by the

Director of Prisons.

Authority

While section 4(1) vests general charge and administration

of the prisons and control and direction of the prison staff in the

Director of Prisons, the exercise of such authority by him is

subject to the orders of the Minister. Section 4 (1) prescribes:

Subject to the orders of the Minister, the general charge and administration of prisons and the control and direction of the prison staff shall be vested in the Director who may make such transfers, and direct the employment and distribution of the prison staff as he may think fit.

The Director must exercise this administrative authority in such a

manner as to give effect to whatever executive orders the

Minister may issue to him but, apart from such orders, he is at

liberty to administer the prisons as he sees fit.

Section 56 of the Act empowers the Minister to make rules

generally for the good governance and management of the

prisons and prisoners and for carrying out the objects of the Act.

Similarly, section 9 empowers the Director to issue Standing

Orders in furtherance of his administrative functions. But the

subordination of his administrative power to executive authority

is again exemplified by the express provision in the section that

such Standing Orders must not be inconsistent with the Prison

Rules made by the Minister (and, of course, the Act itself).

Board of Visiting Justices

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Apart from executive oversight, the Act contains provisions

for more direct civilian oversight. Section 46 mandates the

establishment of a Board of Visiting Justices for every prison in

Guyana and its members are appointed by the Minister. Apart

from this Board, it must be noted that every High Court Judge

and every magistrate is ex officio a visiting justice.

A visiting justice is authorised under section 47 to visit any

prison at any time in respect of which he is a visiting justice,

and may inspect any part of such prison, may enquire and examine the food, diet, clothing, treatment and conduct of prisoners, may question any member of the prison staff or prisoner, may hear all complaints from any prisoner, may enquire into any abuses and irregularities in any prison and shall ascertain as far as possible whether the provision of this Act and the Prison Rules are being complied with and may report such matters to the Minister.

It can readily be seen that section 47 confers considerable

investigative and inquisitorial authority in visiting justices

thereby seeking to ensure that every aspect of the system and

its operations is subject to responsible civilian oversight.

However, the Commission has been informed that there is no

Board of Visiting Justices. Moreover, it doubts whether judges of

the High Court or magistrates are aware of their ex officio

oversight authority as visiting justices. Consequently, it does

appear to the Commission that section 46 is largely ignored and

a most valuable and important aspect of civilian oversight of the

prisons seems to be now lacking. Prisoners are incarcerated on

the orders of justices and it seems meet that justices should

have an interest in the prison welfare even if only for the

purpose of making informed decisions relating to incarceration.

The Commission recommends that the Minister should establish

a Board of Visiting Justices for each prison in compliance with

section 46 and that the Chancellor be requested to bring to the

attention of all High Court judges and magistrates their ex officio

public responsibility for oversight of the prison system and to

encourage them to make prison visits.

It may be interesting to note that visiting justices are

empowered to exercise even some of the disciplinary authority

of the Director. Section 47(2) states:

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A court composed of two visiting justices appointed under section 46(1) or of one ex officio visiting justice, sitting in prison shall have all the powers of the Director in relation to the trial of any major or other prison offence or in relation to any appeal under section 42.

While the Act itself provides for civilian oversight of the

prisons by visiting Justices, the Prison Rules also provide for

civilian oversight by a Visiting Committee made up of five

persons appointed by the Minister on an annual basis and this

Committee, once appointed, has considerable oversight duties

under the Rules.

Visiting Committee

Under the Rules, the visiting Committee is under a duty to

visit each prison not less than once every month and must bring

to the notice of the Director or the Minister all matters connected

with its administration which, in its opinion, require his attention.

The Visiting Committee has power to access all parts of the

prison and all prisoners in their cells or in some room out of the

sight and hearing of prison officers. The Committee must ensure

that the dietary requirements of prisoners are satisfactorily

maintained, and, if not, must report its finding to the Director.

They may direct the Director to ensure and maintain a supply of

suitable food to prisoners. The Committee must investigate

complaints from prisoners and, if necessary, report to the

Minister. They can inquire into the state of the prison buildings

and may advise or suggest to the Director necessary repairs.

The Visiting Committee has the duty of co-operating with

the Director in promoting the efficiency of the prison and of

assisting with advice and suggestions to as the employment,

education, recreation and welfare of the prisoners.

This Visiting Committee seems to be designed generally to

provide intrusive civilian supervision over the prisons and to

provide assistance to the Director and his management team. It

is under a duty to make a report at the end of each year to the

Minister with regard to all or any of the matters referred to in the

Prison Rules or other matters pertaining to the prison. It may also

report to the Minister on matters to which, in its opinion,

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attention should be directed. The Visiting Committee is

therefore an agency created by the Minister by which he ensures

that the prison is overseen and managed to a substantial extent

by civilian authority. It is therefore important that the committee

be composed of responsible civilians who are interested in and

committed to the public welfare.

Coroner

Under section 49 of the Act, it is the duty of the coroner,

having jurisdiction in the locality of the prison, to hold an inquest

upon the body of any prisoner executed under a death sentence

or who dies in prison whether from unnatural causes or not. The

death of a prisoner in prison is a matter of public interest and

when this comes to the knowledge of the officer in charge of the

prison, he must immediately notify not only the Director but also

the relevant civilian authorities such as the Chairman of the

Visiting Committee, the Coroner and the nearest relative of the

deceased (where practicable).

Director as Delegate

The Commission has already drawn attention to the fact

that the Director of Prisons has no authority to appoint or

promote any prison officer. Such authority resides solely in the

Public Service Commission; but the Commission has

recommended that this authority to make appointments up to

the rank of subordinate officer should be delegated to the

Director. Such a recommendation, if implemented, would involve

no more than the devolution of the authority of the Public Service

Commission and no practical loss of authority. The Public Service

Commission usually acts on the recommendations of the Director

and, in any event, would retain residual control since, under

article 202(1) of the Constitution, any person or officer aggrieved

by his non-appointment can appeal to the Public Service

Commission.

As a disciplined Service, the GPS has its own statutory

disciplinary codes under which action is taken. There is no good

reason why the Public Service Commission should not also

delegate to the Director the power to exercise disciplinary

control over, and to remove from office, officers up to the rank of

subordinate officer. The Commission must point out that the

Commissioner of Police and the Chief Fire Officer do have such

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limited statutory powers. It appears rather anomalous that the

Director of Prisons is not similarly empowered even as delegate.

In any event, as the head of a disciplined service which has a

command line management structure, it seems fitting that such

disciplinary authority should reside in the Director. The

Commission wishes to point out that delegation of such powers

by the Public Service Commission to the Director can now be

effected only with the consent of the Prime Minister (Article

201(2) of the Constitution).

Discipline

In order to ensure that security is not compromised by

corruption and discipline is not eroded by disrespect for

authority, Parliament has made certain types of misbehavior

punishable by the courts as criminal offences. Section 11 of the

Act provides:

Every member of the prison staff, or any person who is employed in any prison in any capacity who-

(a)has either directly or indirectly, any pecuniary interest whatsoever in or derives any benefit or advantage from, the sale or purchase of any prison supplies or of any article to or for the use of any prisoner or of any prison, or

(b)has any dealing, whereby he obtains or might expect to obtain at any time either immediately or in the future any benefit of any nature whatsoever, with any prisoner or with any person on behalf of any prisoner; or

(c) assaults, threatens or insults any member of the prison staff, who is senior to him when such senior member is on duty, or as a result of anything done by such senior member in the course of his duty,

shall be liable on summary conviction to a fine of nineteen thousand five hundred dollars or to imprisonment for three months

While section 53(1) creates offences for introducing prohibited

articles into any prison; for supplying such articles to prisoners;

for placing or concealing them for prisoners or for conveying

them out of the prison, the penalty for which is $26,000 or 3

months in prison, section 53(3) provides:

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Any prison or police officer who is convicted under this section shall, in addition to any other punishments, be liable to forfeit his office and any arrears of salary due to him and also to any pension to which he may be entitled.

The Commission has seen the need to advert attention to

such criminal offences not merely because misconduct of

members of the prison staff is criminally punishable but also

because of their particular relevance to the testimony of a

former inmate of the Georgetown Prison. That inmate informed

the Commission of specially prepared meals being supplied by

prison officers to prisoners at a price; of financial transactions

between prisoners and prison officers; and of articles being

thrown over the prison walls and their subsequent upliftment and

concealment in the prison. The involvement of prison officers in

such illegal activities does not attract only internal disciplinary

sanctions but criminal sanctions by the courts since they affect

internal discipline and can seriously prejudice the public welfare

and safety. Prison staff should be made aware of the fact that

sections 11 and 53 criminalise such activities and render the

perpetrators answerable to the criminal courts.

Courts

The Commission is quite satisfied that the law has

adequately addressed the issue of civilian oversight of the

administration of the prisoners. In fact, the law provides for

civilian participation in the administration of the prisons.

However, the Commission is concerned that sections 46 and 47

of the Act which provide for a Board of Visiting Justices and for

judicial oversight of the administration of the prisons seem to

have been overlooked to the detriment of the policy of the

legislation. Parliamentary creativity and wisdom should not be

stultified by executive or judicial omission. Parliament must be

presumed to have intended that judicial officers on whose orders

persons are incarcerated should play some role in overseeing the

prison system.

Recommendations

With regard to the Prison Service’s “relationship with, and

responsibility to, civilian authority” the Commission recommends

that:

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(159) The Chancellor of the Judiciary should be asked to alert

the Magistrates and Judges as to their responsibility for

oversight of the prison system and encourage them to

make prison visits since such visits would enable them to

make informed decisions on sentencing.

(160) The Minister should establish a Board of Visiting Justices

for each prison in compliance with section 46 of the Act.

(161) The Visiting Committee should ensure the satisfaction of

the prisoner’s dietary requirements and report to the

Director of Prisons if necessary; hear complaints from

prisoners and report to the Minister if necessary; and

bring to the attention of the Director administrative

matters requiring his attention.

(162) The Chief Medical Officer in furtherance of his statutory

duties should ensure that a government medical officer

is assigned to each prison and that he makes daily visits

thereto.

(163) Officers-in-Charge should discharge their responsibility

for ensuring that sick prisoners are not left without

medical attention.

(164) Staff of the Georgetown prison and other prisons should

especially be apprised of their liabilities for involvement

with prisoners in financial transactions, food smuggling

and other racketeering and should be duly sanctioned for

misconduct, in these respects.

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Conclusion

In brief, the Commission has come to the following conclusions:

(1) National and international developments have impacted on

the operations of the Disciplined Forces but commensurate

changes in legislation, organisation and administration in all such

areas have not been made. Given their current resources,

composition and capability, the Forces seemed unable and/or

unwilling/reluctant to confront with equanimous resoluteness,

the recent spate of social disorder and internal disturbance.

Public safety and national security have suffered as a

consequence. A ‘National Security Sector Reform Programme’,

which methodically addresses these deficiencies of the Forces to

enable them to cope with these evolutionary challenges should

be considered for implementation.

(2) Clear guidelines should be given to determine how

responsibility for the performance of the Forces ought to be

shared between the Ministers of the Government with executive

responsibility for their respective agency and civilian authorities

on the one hand, and the professional officers of the Forces on

the other. As part of their responsibility, Ministers should: have

prepared by their technical Officers, long-term strategic plans for

each of the Forces; reconfigure their Ministries in such a way that

would allow for the monitoring of these Plans on a periodic basis,

and where necessary, to review them. In addition, the

establishment of a Parliamentary Committee on Public Safety

would provide appropriate constitutional oversight of these

processes.

(3) No evidence of deliberate discrimination in selection of

personnel for the Forces was found. It was felt, however, that no

conscious initiative was taken to improve on the unimaginative,

dated and worn procedures, and potential recruits from certain

geographic areas or of certain ethnic groups were disadvantaged

or inadvertently ignored. Recruitment, retention and promotion,

and all other matters affecting personnel, should be entirely re-

examined. The evidence reveals that existing procedures,

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based on traditional population centres and the lack of a wide

multi-ethnic recruitment and promotion panels are unlikely to

produce results which are satisfactory to the majority of the

population. Greater ethnic balance is both desirable and

achievable with the adoption of new approaches.

(4) The four Forces have separate and distinct roles to play in

public safety and national security. Although there may be a

measure of co-operation and collaboration, the operational

efficiency of each Force is more dependent on their

specialisation than on collaboration. The failure of the GPF, GDF

and GFS to maintain adequate reserve forces has created the

illusion of manpower shortages. The absence of reserves could

prompt premature requests for assistance from other Forces

when, indeed, reserves could be mobilized in cases of

emergency. The best means of ensuring a higher level of

operational efficiency and effectiveness, however, is by the

establishment, equipping and staffing of training schools in all

the Forces, but particularly for the GPS and GFS. In addition,

special attention must be paid to the professional and

managerial education, training and development of senior

officers.

(5) The Commission found no evidence that the Ministerial

system for financial and public accountability was deficient or in

need of reform. In broad terms, the Forces have been found to

be functioning within the limits of their present resources,

capacity and traditional focus. Blame for failures in public safety

and national security is to be shared with the Executive not

merely because the Forces may have lacked the capacity to

respond effectively but also because executive direction and

governmental organisation may not have been sufficiently firm,

compelling and retributive.

(6) An open-door policy on the operations of the GPF and GDF

in particular, together with a community oriented strategy, is

needed to transform the image of the Forces if the general

population is to feel that these agencies are indeed maintained

in the service of the country as a whole.

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(7) Recommendations for reform, however, relevant to current

social conditions must be reviewed periodically if they are to

remain relevant to functional effectiveness and efficiency. The

work of the Commission should therefore not be seen as final but

merely a part, if not the start, of a continuing process of

adaptation and change to improve the performance of the

Disciplined Forces in the discharge of their responsibilities. The

practice of conducting periodic national security reviews with the

aim and objective of examining changes in the security

environment on the one hand, and recommending improvements

in the Disciplined Forces on the other, should be considered.

(8) The Commission was given no assistance by way of

testimony to examine the structure and capability of the subject

Ministries to draft and monitor the execution of long-term

strategic plans in relation to the development and functions of

the Forces. However, it is the Commission’s view that such

Ministries may need to be re-configured to enable them to

discharge such a responsibility.

Signed:

…………………………… ….…….…………………………

Ian Neville Chang S C David Arthur Granger MSS

Chairman Member

………………………… …………………………………..

Charles Rishiram Ramson S C Mohabir Anil Nandlall

LL.B

Member Member

………………………….

Harold Alexander Lutchman Ph.D

Member

282

Date post:	26-Nov-2014
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Report of the Disciplined Forces Commission (Unofficial Copy)

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