Photo credit: Jeremy Francis
A month ago, I wrote at some length about the report by the Integrity Commission in Jamaica about the epic failures of the planning and environmental regulators, the National Environment and Planning Agency (NEPA) and the Kingston and St Andrew Municipal Corporation (KSAMC) with regards to an apartment building at 11 Charlemont Drive in Kingston. You can read the earlier post here: Nine Day Wonders
An occupational hazard of writing opinion pieces is the impulse to quote yourself, but I’ll risk it: this is what I wrote about my fears re the Charlemont development, ‘… a churn of newspaper articles, radio and TV interviews, public outrage and then silence. In fact, that seems to be the official strategy. Hunker down, mention vague investigations and probes, propose a task force, everyone will soon forget.’
And for a while the whole thing went quiet. Yes, the National Water Commission (NWC) President was sent on administrative leave by his Board of Directors, but no update on internal investigations, legal consultation and reviews surfaced from any state agency.
Then, on 10 January 2024, roughly three months after the IC report was published, the Director of Public Prosecutions (DPP) released a statement which pointed to the failings of both NEPA and the KSAMC but concluded that no criminal case could be brought against the proponents of the development due to the twelve-month limitation period under the NRCA Act. She did not opine on whether such a case could be brought under the Building Act. DPP Makes Ruling..
The DPP’s ruling was followed by a January 13th statement from the Mayor of Kingston, that internal investigations were ‘already underway’.
This was met with forceful criticism from the minority caucus leader of the KSAMC, Andrew Swaby, who called the KSAMC response ‘sluggish’. Minority Caucus Leader chides Mayor
Citizens Rights to the City (CRC), a civil society group with membership of 29 citizens and neighbourhood associations in Kingston, said NEPA and the KSAMC were using tactics of ‘delay and obfuscation’, and expressed a ‘strong lack of confidence’ in the willingness of those agencies to investigate themselves.
And then today’s newspapers (January 21) reveal the interdiction of one of the NEPA officers who did report the breaches and his swift removal from the NEPA office. Sacrificial Lamb?
All I have are questions: What was done with the monitoring reports the NEPA officers submitted? Who reviewed them? Was a decision taken not to prosecute, and if so, by whom? Or was it a simple (but still egregious) case of the file languishing without a decision? Did any senior NEPA officer attempt to speak with the KSAMC about what they observed at 11 Charlemont Drive?
Surely the decision to prosecute (or not) a significant permit breach by the President of a state agency, a major utility company, would only be taken at the highest level by the Board of the NRCA, or at the ministerial level? Was this issue put before the NRCA Board, the Prime Minister, or the Minister with responsibility for the environment?
I have sat on the NRCA Board under both administrations, admittedly quite long ago, and please forgive me for not looking up the exact dates. I didn’t last long, but there I witnessed for myself the unwillingness of a statutory body to proceed with court action against any state agency even though the NRCA Act binds the Crown. At one point, if memory serves, notice to the Cabinet Secretary had to be given before any such action was taken and there was even a written guideline about What to Do When the Government Itself Breaks the Law, not, of course, with that title!
And these are the giant hurdles faced by Jamaicans: We rely on the state to promulgate effective laws with deterrent sanctions. We rely on regulatory bodies to decide if they will take legal action against breaches, whether by individuals, companies or the state. We rely on regulators to collect robust data, to enforce quickly and fairly, and if a decision to prosecute is made, to build strong cases. But the reality is that when breaches are observed, citizens are on their own to find the funds and the endurance to file legal action against these taxpayer-funded agencies. And whenever deficiencies like the instant case are pointed out, a few cases of successful prosecution (and ridiculously low fines) are trotted out as if this justifies the many which escaped the attention of the regulators.
Time and time again, NEPA and the KSAMC have failed us. There is no real interest in planning or environmental regulation at the highest level in Jamaica, everybody knows it, and it has been ever thus. Today’s Gleaner reports that the former legal director at NEPA has sought Judicial Review of the impact of the Integrity Commission’s report on her employment prospects, characterizing their actions as ‘unfair’. No doubt there will be convoluted defences of how the agencies themselves acted, explication of their processes or lack thereof, complaints about the Integrity Commission, but we must all keep the outcome in mind: 12 one- bedroom apartments were permitted. Six two- and six three-bedroom apartments were constructed. And this blatant and uncontested breach was not the subject of a legal case by either regulatory body – nor was the construction stopped.
My last set of questions are: What now happens to the buildings themselves and the people who bought apartments there in good faith? Will their situation be regularized, and will profits remain with developer and contractor as planned and expected? And where does responsibility for what happened at 11 Charlemont Drive lie? With officers, inspectors, managers, chief this or that, CEOs, Permanent Secretaries, Boards or Ministers? Or will the response be the scapegoating of the most junior link in that chain of complicity?
Wow! Searing and revealing! Thank you for putting it all together and making it plain. Revealing what is wrong is the first step toward changing things for the better. I have to believe there are enough conscious people in our country that envision a country that we can all enjoy and care for, in the traditions of our ancestors. Everytime you write you plant a seed, lay a brick toward that. Thank you.
Sometimes you have to remind yourself of what you've written, so I think it's fine to quote yourself! But the questions seem to be piling up. I hope our local media keeps digging away at it. To think we pay taxes (including property taxes!) to support these non-performers. Actually they are worse than non-performers. I am trying to think of the right word...