Did the system really fail the 16 -year-old?

Jul 11, 2023 Features / Columnists, Peeping Tom

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Kaieteur News – Having failed to lynch the Minister of Local Government in the court of public opinion, some of those who were after his head, ironically in the name of justice, are now claiming that the teenager, who made an allegation of sexual assault against the Minister, was failed by the system.

They want an investigation into the investigation and they want the same government whom they accuse of failing the child to order such an investigation. This could not be more absurd. Those who are now shouting about the system failing the teenager have failed to specifically identify how the system failed the child. But they want the very government which was part of this failure, to investigate and determine where the failure lay.

He who accuses must prove. Those who are charging that the system failed, have an obligation to state precisely where this failure lay and who was responsible for the failure. It is unacceptable for a broad accusation of failure to be made without any specifics as to where exactly the failure lay. Regardless of what the investigation unearthed, some persons had already made up their minds. They have a right to believe what they want.  But justice is not based on belief. It is based on proof beyond reasonable doubt or on a balance of probabilities.

Justice is also supposed to be blind. This is another way of saying that the justice system should be impartial and unbiased, treating all individuals equally regardless of their social status, wealth, race, gender, or any other distinguishing characteristic. Guilt or innocence should be based solely on the merits of a case, the evidence presented, and the application of the law, rather than being influenced by external factors or personal biases.

But some persons had made up their minds even before any investigation had been launched. And now failure is being laid at the feet of the system. If there was any failure at all, it was within some of the very forces who had determined, even before the police was called in, that the Minister was guilty. Or failure can be attributed possibly to those who impulsively were pressing for the teenager to be placed in protective custody rather than remain under the protection of her parents.

Soon after the allegations of sexual assault arose, someone questioned why the child was not immediately placed under protective custody. The Child Care Protection Agency then reportedly moved swiftly to place the child in protective care.  Placing a child in protective custody or care is not an arbitrary or discretionary decision. It is guided by law and the Protection of Children Act sets out clear and precise grounds upon which such a decision has to be made. The law provides 10 conditions which can be used to determine whether a child is in need of protective care. Can the Child Protection Agency state under which of those 10 legal grounds it determined that the child needed to be placed in protective custody? And what was the basis for so determining that the conditions had been met for one or more of those grounds?

How did the system fail the child? Somebody needs to say. The details of investigation have not been made public. So on what basis is it being claimed that the system failed the child?

.The police were forced to discontinue the investigation after the Office of the DPP said there was no provision to continue in light of the fact that the complainant had withdrawn the complainant. In other words, no complaint, no charge.

Once the complainant had withdrawn the complaint, a successful prosecution, whether done in the public interest of otherwise, was bound to fail. That is bottom line. The case broke down not on the basis of any investigative flaws but on the basis of law. The withdrawal of the complaint was determined to have brought an end to the investigation. In other words, the legal position that was adopted was that once there is no complaint, there can be no charge.

There has been a competing argument that the DPP should have allowed the court to decide whether to accept the withdrawal of the complaint. The Kaieteur News carried a front page comment about a precedent in which in once case the DPP still charged someone despite the complainant requesting that the charge be withdrawn. But none of our legal luminaries have moved to the court to test whether the law or common law makes provision for instances in which the court should decide whether a complaint can be withdrawn It is not too late for those who are alleging that the system failed the child to file some action demanding that the court should be the one empowered to determine whether the complaint should be withdrawn.

(The views expressed in this article are those of the author and do not necessarily reflect the opinions and beliefs of this newspaper and its affiliates.)

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• justice, Minister of Local Government, opinion, Peeping Tom, public

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