Having a ministry agency preside over an allegation of rape by a powerless child against a sitting minister of government was always going to be a difficult challenge. Given the outlook of the present government there would be unrelenting pressure from many directions for this case to collapse. This was exactly the burden that faced the Childcare and Protection Agency (CPA) of the Ministry of Human Services and Social Security after it became aware on June 17th of an allegation that had been made against the Minister of Local Government, Nigel Dharamlall.
Almost from the outset of the CPA’s taking of the child into protective care, there were concerns that that the complainant was being denied access to independent legal counsel and communication with persons outside of the agency. On June 22nd, Stabroek News reported based on information from a source and an attorney that the child was being denied access to independent legal counsel. It wasn’t until June 26th, the CPA denied this but even then this was impossible to verify independently as the child had been clearly limited in her ability to contact persons outside of the CPA.
In its statement on June 26, the CPA said it “will provide all support and assistance for the child that is needed” and emphasized that Standard Operating Procedures have been followed throughout the process on this matter and in keeping with the Childcare & Protection Agency Act 46:07, Protection of Children Act 46:06 and the Caribbean Court of Justice-recognized Revised Model Guidelines for Sexual Offence Cases in the Caribbean region. It is unclear why the latter was mentioned as that document mainly addresses what transpires in the judicial system after a charge has been laid and has little to with the procedures leading up to a possible charge.
The question of whether the complainant had access to proficient legal counsel at the CPA arose on June 21st when she was taken by police investigators to the house where the alleged rape occurred. By this time Mr Dharamlall had hired a well-known law firm and a King’s Counsel. Not only should she had been properly advised as to whether she should have even gone to the site, she should have also been guided about what to answer at the location. Worse, the accused was present at the site during the visit. This was after he had been arrested on June 19th and released on $1m bail after spending a short time being questioned.
The presence of the accused at the site whether on the parapet, the roof or on the road was completely inappropriate and no counsel with the interest of the complainant in mind would have permitted that.
Indeed, Section 42 of the Sexual Offences Act states:
2. (1) Where a report is made of an offence under this Act, at no point during the investigation shall the
complainant be required to recount the complaint or any part of it, in the presence of the accused unless the complainant wants to do so.
(2) The complainant shall not be required to view or be in the presence of any person referred to in the
complaint as having perpetrated any offence under this Act save for the purposes of an identification parade and then only –
(a) by way of audio visual link;
(b) by way of a two way mirror; or
(c) in any other manner sensitive to the
complainant’s well-being.
It clearly would have been inadvisable for the complainant to visit the premises where the act allegedly occurred as it could have been wholly transformed in an exercise to undermine her case/confidence – fresh painting etc.
Who advised the complainant in relation to this? The CPA, the children’s NGO, the police? It was sheer incompetence. Alarm bells should have jangled for those who were concerned about the integrity of the child’s case but who could reach her if she was prevented by the CPA from having access to others?
Then on June 22nd, the police delivered a file to the Chambers of the Director of Public Prosecutions (DPP) for advice on the matter. Article 187 (4) of the Constitution makes clear that the “Director shall not be subject to the direction or control of any other person or authority”. That should however not prevent the Director from defending the Chambers’ conduct in this matter. It sat for several days on a file which would have presumably consisted of a statement by the complainant and one by the accused and did not act expeditiously when all it needed to do was to decide whether or not the elements for the charge existed.
The DPP’s Chambers on June 27th then sought to excuse its delay by pitiably pleading that there were thousands of files to handle from all across the country. That backlog had nothing at all to do with the matter of grave and urgent public importance before it. Curiously, the Chambers also stated in a release on June 27th “We strongly urge the public to desist from politicizing an alleged criminal offence. It is indeed one of national interest and therefore all statements/evidence must be considered before legal advice is given to the Guyana Police Force”. It is unclear what additional statements were being referred to as only the complainant’s and the accused’s were under consideration since the offence was alleged to have occurred months ago.
Though supposedly under the weight of thousands of files, a day later, on June 28th, the DPP’s Chambers appeared to have completed its examination of the Dharamlall file to the extent that it asked the police to conduct further investigations. On June 30th, the police then reported that the complainant had provided them with a `No Further Action’ statement. The complainant mustered up courage and resolve from some period prior to her protective care under the CPA to lodge a complaint with the President. For around 13 days thereafter the complainant maintained her statement and story and only signalled she did not want to pursue it further when the DPP sought further investigations.
There is more than a whiff of infamy here. The public has a right to know what further investigations were requested by the DPP on June 28 and what – in minute detail – the police did upon receiving the file so that there could be a better understanding of why the case now appears to be on the verge of collapse. The same holds for the NGOs which interacted with the complainant under the jurisdiction of the CPA.
The complainant must have been under great duress and pressure while at the CPA. Considering the gravity of the matter she is entitled to a period of reflection and adequate legal counsel to arrive at the decision she feels that is best for her and should be permitted this.
The progression of this matter raises serious questions about whether there were efforts to undermine the complainant’s case and this needs to be closely examined.
