By Hollis France and Alissa Trotz
Hollis France is Associate Professor and
Chair of the Political Science Department at
the College of Charleston
Alissa Trotz is Professor and Director of Women and Gender Studies at the University of Toronto. She is also Affiliate Faculty at the Dame Nita Barrow Institute of Gender and Development Studies, University of the West Indies, Cave Hill Campus, Barbados.
On June 19, Nigel Dharamlall, sitting Minister of Local Government and Regional Development, was arrested following allegations of rape made against him by an Indigenous girlchild, still of school age and currently sitting CSEC exams. In the past other allegations of sexual violence, some relating to Indigenous women, have been made against Dharamlall. None of these allegations is news to the authorities. In one instance last year, it was alleged that Dharamlall sent photographs of his genitals to a woman’s phone. His defence on that occasion was, risibly, that his phone had been stolen! And again last year, while a Minister and MP, Dharamlall made sexually offensive remarks in parliament directed at a female opposition MP. For his vulgar and misogynistic behaviour in the People’s house he faced no reprimand, censure, or other consequence from the Speaker, any MP on the government side (including and especially women), or the PPP/C itself. But the picture of Dharamlall that emerges as an alleged serial offender is irresistible, and if so, his protection by the authorities and embrace within the highest echelons of the PPP/C are unfathomable.
This latest allegation against Dharamlall involved the grooming of a (then) 15-year-old child, culminating in her brutal rape. The specifics, which have been leaked on various social media platforms, are persuasive in their detail and clarity. They meet and arguably surpass the prima facie standard used in the criminal justice system to initiate criminal charges. The consistent reaction of all right-thinking persons on learning of these allegations is one of concern for the complainant and outrage at the alleged perpetrator. But not so for Dharamlall’s superiors and associates, some of whom have rushed to his defence on social media. Worse, it is increasingly evident that the State has deployed its enormous power and influence in a multiplicity of ways to protect him and not the child.
For instance, it has twice been reported that the complainant expressed a wish not to proceed, but in circumstances indicating not uncertainty on her part but rather improper pressure and inadequate support from key State authorities. In fact, there have been widespread media reports – one story included interviews with witnesses – that Dharamlall visited the family in an attempt to get them to retract the statement, and the figure of $10 million has been bandied about. Yet, there is absolutely no evidence that the police ever investigated any of these reports.
Then, on June 20, the media reported that the complainant was taken to the house where the alleged rape took place whilst the suspect Dharamlall was home. Even though he was asked to remain outside, his presence there was a blatant violation of the Sexual Offences Act (SOA), s. 42(2) of which dictates that a complainant shall not be required to view or be in the presence of the suspect except for the purposes of an identification parade. Aside from its obvious illegality, taking the complainant to the scene of the alleged crime in the presence of the suspect was of questionable evidential necessity and undoubted insensitivity, serving only to re-victimise her by forcing her to relive a horribly traumatic experience.
Since reporting her allegations, the complainant has been held incommunicado by the Childcare and Protection Agency (CPA). Two defence lawyers have publicly recounted how they were prevented from meeting with the victim, yet another blatant violation of her rights. As the Guyana Human Rights Association pointed out in its press release, by isolating the child on the pretext of protecting her, the CPA in fact prevented her from accessing the emotional support and legal advice she so desperately needed, “while making her vulnerable to those seeking to change her mind.”
Most egregious of all, however, has been the conduct of the Director of Public Prosecutions, the office responsible for all criminal prosecutions in the country. After receiving the police file on June 22, the DPP defensively issued a press release justifying its sloth (on the basis of having thousands of files), only to return the file to the police a week after having received it, ostensibly for further investigations. As many have pointed out, not only was the delay unacceptable given the national importance of the matter, but the need for further investigations where a detailed statement of sexual violence was already on file is highly suspicious. Absent access to independent support of her own choosing, absent access to independent legal counsel, and facing yet another round of bruising questions, who could be surprised when the following day it was reported that the teenager had submitted a “no further action” statement to investigators? And then only hours after the police file containing the complainant’s alleged wishes was returned to the DPP, the latter concluded “that in the absence of the victim’s complaint, there is no legal provision for the Police to proceed with the matter.”
We should all be outraged by this decision. Given accepted protocols surrounding criminal prosecution, a complainant’s wishes are not determinative. Criminal prosecutions are initiated when someone is a victim of crime, but the victim does not decide the nature of the charge or whether to proceed and certainly does not shoulder the burden of retaining counsel on their own behalf. All these matters are solely within the purview of the relevant state agency – this being, in Guyana, the Chambers of the DPP. The underlying justification for this approach is that crimes are considered to be committed not just against an individual victim, but against society as a whole. They are, quite simply, public wrongs.
In practical terms, this means that having given a detailed statement that discloses the commission of a crime, it was no longer the complainant’s decision whether to proceed. Curiously, the DPP’s statement speaks vaguely of the “absence of the victim’s complaint,” leaving it unclear whether the victim has in fact recanted and said she was previously lying or whether, as reported, she simply expressed a desire not to proceed with prosecution. Unless the former occurred (which is itself a criminal offence deserving of prosecution according to Section 41(4) of the SOA), then it remains the decision of the DPP whether criminal charges should be laid. As recognised by the Code for Prosecutors promulgated by Mrs. Ali-Hack herself (see CODE-FOR-PROSECUTORS-Guyana-v4-May-18-FINAL-003.pdf (dpp.gy)), this is a decision taken in the public interest, and one where the wishes of the victim is only one of a multiplicity of factors to be considered. This Code enumerates a number of considerations, including the seriousness of the offence, the strength of the case, the circumstances of the victim and whether she is in any situation of vulnerability, whether any position of trust or authority exists between the victim and the suspect, whether the crime was motivated by the race, ethnicity, gender or other personal characteristic of the victim, the likely impact on the victim’s mental health, the age of the victim and corresponding obligations for children arising under domestic legislation pertaining to children and the 1989 UN Convention on the Rights of the Child, and the impact on the wider community.
As the Code recognises, no one factor is determinative and some may be unequally weighted; moreover, the weight attributed to these factors may vary from case to case. But arguably, in this instance, the balance seems overwhelmingly in favour of prosecution in the public interest, notwithstanding that at this point in time the complainant expressed a desire not to proceed further. Consider, for example, that the offence alleged is one of the most serious, involving a child in a particular situation of vulnerability on account of her ethnicity, gender, age and social status. It is a textbook case of unequal positioning, she being in high school and from a humble background, while the suspect occupied one of the highest political offices in the land. If one is to judge from what is in the public domain, the case seems to be compelling based on the detail and clarity of the complainant’s allegations. Given the nature of the allegations, involving matters of a deeply intimate nature and the shame involved, a decision not to prosecute could have a chilling effect on other potential victims and a devastating effect on the community as a whole. In short, there are a multiplicity of factors in favour of prosecution, in spite of the victim’s (possibly temporary) wish at this point in time.
Admittedly, the final decision is not an easy one, though the alacrity with which the DPP acted on the victim’s latest statement belies the complexity involved. Ultimately, unless the victim recanted her story (as distinct from not wanting to proceed), such swift acquiescence to her momentary indecision seems premature, ill-advised, and against the weight of the factors highlighted as relevant by the DPP’s own Code of Conduct. One wonders whether the DPP paused to consider what pressures may have been brought to bear on the victim (to say nothing of her own role in sending the case back for further investigations) or whether any emotional or psychological support was offered to enable her to navigate the process. Legendary British judge, Lord Denning, immortalised the tenet ‘be you ever so high, the law is above you’, accepted to be a cardinal feature of the rule of law. Here, considering that the suspect is a high-ranking member of the PPP and at the time a government minister, the DPP’s decision inevitably calls into question whether the rule of law applies in Guyana.
In the wake of this most recent allegation of rape against Dharamlall, the Minister of Education, Priya Manickchand, has been visible on social media blaming the Opposition, social media, NGOs especially the GHRA… in short, anyone but the relevant state agencies and the government itself, whose responsibility it was to pursue this matter diligently and with care and compassion. This is in sharp contrast to what played out in the wake of the horrifying Mahdia fire, in which 20 Indigenous children perished (and where an indigenous teenager was charged with murder swiftly and without delay), even though it has since emerged that in fact the Ministry of Education had been in possession of a report of reforms needed to address the system of dormitories for over a year (the wider conditions surrounding dorms in general and Mahdia in particular will we hope be the subject of the COI). Manickchand has loudly pronounced on her own concern for victims of sexual violence, evidenced by the very SOA which was passed – with the active and wide engagement of advocacy groups and organisations – during her tenure as Minister of Human Services and Social Security. But as the shameful conclusion to this case shows, it is no use having modern legislation when there is no enforcement; no use in organising and advertising workshops and policies and securing international aid; no use promoting sexual violence hotlines, when in practice established protocols and legislative mandates are violated if the suspect is a high-ranking or well-connected individual.
Tragically, this case is symptomatic of larger systemic failures and is a product of the contempt mainstream society has for indigenous peoples. One does not need to read the bloggers’ comments to understand the racist stereotypes that perversely blame the victim and exonerate the suspect. The treatment of this teenager by the relevant authorities – police, the CPA and in particular the DPP – underscores the lack of regard for Indigenous People’s welfare. And the fact that this could happen in the first place is yet another sign of the sexual exploitation of indigenous girls and boys.
Just yesterday, a statement signed by over two dozen Indigenous women and men, the Amerindian Peoples Association and Red Thread noted that “we are fearful that these allegations will not be fully investigated, and that the Indigenous child will be left to bear the trauma of not only the alleged vicious assault on her body, but also that of the brutal handling of this case by Guyana’s criminal justice system.” They were right to be fearful. Among their demands – which includes attending to the medium and long term emotional and psychosocial needs and wellbeing of the teenager and her family – was a full and impartial investigation into every single aspect of the handling of the Dharamlall allegation. This cannot be the end of this matter. We must insist on this investigation, beginning with the Chambers of the DPP.
Here we have an outrageous situation in which an alleged rapist requested permission to proceed on administrative leave during the investigation, as if he was doing the government and people of Guyana a favour (and on administrative leave he continued to collect his salary). Following yesterday’s announcement by the DPP, on Tuesday night President Irfaan Ali released a statement that Dharamlall had offered – not been instructed – to resign, a statement that went as far as to tell us that Dharamlall had been personally affected! The statement was devoid of a single reference to the young indigenous teenager and high school student who made the allegations of rape, which seem not to have been recanted as the reports state that the complainant merely does not want to proceed. It is as if she did not exist. Indeed, she clearly does not count in the eyes of this administration. But she must matter, and she must continue to matter, to the rest of us.
What is fun fuh lil boy is dead fuh crapaud. But moon ah run till day ketch am.
We stand with the teenager.
To view the courageous statement issued by Indigenous women and men, please see: