Two processes, two purposes

Aug 01, 2026 Features / Columnists, Peeping Tom

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(Kaieteur News) – There is a strange argument now circulating in relation to the three men charged with murder arising from the sinking of the M.V. Barima. It is being contended that because a Commission of Inquiry is about to begin its work, the criminal proceedings should not, or perhaps cannot, proceed at the same time.

That argument confuses two entirely different processes and two entirely different purposes. It fails to accept that a Commission of Inquiry and a criminal prosecution can and do proceed in parallel.

A Commission of Inquiry is essentially a fact-finding and public-accountability exercise, while a criminal prosecution is a judicial process to determine whether particular accused persons are guilty of particular offences.

The Commission may ask what happened to the Barima, why it happened, whether the vessel was properly maintained, whether it was seaworthy, whether there was overcrowding, whether regulations were followed, whether the crew acted properly, whether there were failures by officials and what should be done to prevent another tragedy.

A criminal court is concerned with something much narrower: whether the prosecution has proved, beyond reasonable doubt, the criminal charge against each individual accused person. The Commission therefore looks at the whole system and the whole tragedy, while the criminal court looks at the criminal responsibility of particular individuals.

The Commission is therefore not a substitute for a criminal trial, and a criminal trial is not a substitute for a Commission of Inquiry. Nor should criminal prosecutions have to sit around twiddling their thumbs until a Commission has completed its work.

Criminal justice cannot sensibly operate on the principle that a prosecution must wait until every possible question surrounding an event has been answered by a public inquiry. The Commissions of Inquiry Act itself contemplates concurrent processes.

The Act does not say that a person cannot be prosecuted while a Commission is investigating the same events; instead, it provides protection for a person who gives evidence before the Commission against being compelled to incriminate himself.

If Parliament had intended the existence of a Commission to prevent criminal proceedings, there would have been little need to provide a statutory safeguard against self-incrimination for witnesses appearing before the Commission.

The very existence of that protection demonstrates that Parliament understood that a Commission’s proceedings could potentially intersect with other legal proceedings involving the same facts. In other words, the Act’s answer to the problem is protection against self-incrimination, not immunity or a pause from prosecution while the COI takes place.

Imagine the consequences of a rule that bars a criminal prosecution while a COI is taking place. The police and prosecutors would effectively have to suspend criminal investigations until the Commissioners submit their report, however long that might take.

A Commission of Inquiry could therefore become an unintended shield against criminal accountability, because the mere appointment of Commissioners would mean that arrests, charges and prosecutions would have to wait until a report was completed, debated and acted upon. In a serious case, that could mean months or even years during which evidence could deteriorate, witnesses’ memories could fade, documents could disappear and suspects could remain beyond the reach of justice.

The law cannot sensibly operate on the principle that establishing the truth through a Commission must come before pursuing criminal responsibility through the courts; the two processes can proceed at the same time, each doing the job for which it was created.

And there is an international example that makes the argument for parallel processes. That example is South Korea’s M.V. Sewol disaster.

When the Sewol ferry sank on April 16, 2014, killing 304 people, South Korean authorities did not say that because there would be investigations and inquiries, nobody could be criminally prosecuted until those processes were completed. Quite the opposite happened.

Within days, prosecutors and police were conducting a joint investigation, examining communications between the captain, crew and ferry operator and gathering evidence. By April 19, the captain, third mate and helmsman had been arrested, and prosecutors sought further arrest warrants against other crew members.

By May 15, prosecutors announced that they were charging the captain and three senior crew members with murder, alleging that they abandoned the sinking vessel without attempting to evacuate the passengers.

At the same time, investigators were still establishing the causes of the disaster, including the sharp turn, overloading and inadequate ballast that contributed to the ferry’s loss of stability. The criminal process therefore did not wait for every investigative and inquiry process to finish.

Indeed, subsequent investigations continued for years while criminal proceedings had already taken place and convictions had been secured against members of the crew.

The Sewol experience therefore demonstrates an important principle: a major maritime disaster can generate both criminal proceedings and wider public investigations at the same time.

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

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• Commission of Inquir, criminal proceedings, MV Barima, Peeping Tom

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