Women's Demonstration as Paul Bérenger becomes Prime Minister: Click PHOTO NEWS to see pictures. Click here to read letter to P. Berenger

30.09.2003

Please find below the MLF letter addresed to Paul Berenger, the new Prime Minister. See also Photo News Section of our website for pictures of the demo.

Muvman Liberasyon Fam
Registered Association No. 1595
Ragoo Lane
Bambous
30th September, 2003


Prime Minister (To take office in four hours' time),
Through Speaker and Parliament, meeting now,
Pope Hennessy St,
Port Louis


Dear Sir,

Charges against Employees of the State, Police Officers Anne-Marie, Nepaul and Ramdin

It is now, at the moment that you take up office as Prime Minister at the helm of the State, four and a half years since the brutal death, while in the custody of the State of Mauritius, of Reginald Topize, the famous musician "Kaya".

The three Police Officers, Officers of the State, who were on duty at the time of his death, Officers Anne-Marie, Nepaul and Ramdin, have still not been made to face a trial for this homicide.

As Leader of Opposition
When you were Leader of the Opposition, at the time Kaya's wound-ridden body was found in Alcatraz Cell Number 6, your failure to place blame for his death on the State of Mauritius was, to say the least, a cause for concern. Certain of your public statements, even at times when you "Opposed" the Government of the time on every other point, served to contribute to exonerating the State and its Officers of blame. You even, in some statements, implied that a detainee risks death if he is not bailed out of Police Cells, the responsibility for the death then supposedly lying with those who had the moral responsibility for organizing bail.

As VPM
For a brief while, when you were in an Alliance with Rama Valayden around the last elections, you put a halt to blaming him for Kaya's death.

But then, after the split in Mouvement Republicain when Mr. Valayden became your political adversary again, during most of your three years as Vice Prime Minister, you reverted to implying that he was responsible for Kaya's death once again, thus again exonerating the Officers of the State who were on duty.

Now becoming Prime Minister
Now you are about to become Prime Minister.

This dossier is still an open wound on the history of the country.

Kaya's death led to the mass rebellion against the State and, in particular, against the Police, in February, 1999. The anger of the people is still whole.

Of five doctors, four say violent death
There are five doctors who have given expert opinions in this case. Two examined the body of Kaya. Two examined Kaya's brain tissue. The fifth based his opinion on three or so pages of paper.

First, Dr. Surnam, who examined the body, said the cause of death was a head injury.

Second, Dr. Oogarah, examined brain tissue and found evidence of head injuries.

Third, Dr. Ramstein, who examined the body, concluded that either of two head injuries would have produced death: one sustained by being projected on to the ground, and the other by being shaken, probably by the hair.

Fourth, Dr. Graham, expert pathologist who examined brain tissue and who gave a report paid for by the Mauritian State, concluded that the death was unnatural and the result of violence.

Fifth came Dr. White. He did not examine the body. Nor did he study brain tissue. He read a badly translated version of Dr. Ramstein's report, from which the key line about the head injury was strangely missing. He was brought in by the then police adviser, David Shattock, to give evidence for the Police. He, and only he, found that death was due to natural causes. He also said the injuries were minor.

And, as Kaya's widow, Mrs. Veronique Topize can testify, and as the photographs all show, Kaya's body had over 30 injuries. Some of the injuries on his body are strange circular marks. None of his injuries date from before his detention. Nor was this ever contested by anyone throughout the three-year Judicial Inquiry. Joseph Reginald Topize was in good health when he was taken to Police Headquarters to give a statement. Indeed he had performed at a concert only days before.

In addition, when Kaya's body was found face down in the cell. The blood from his nose, instead of having run downwards, seems to have, defying gravity, run upwards into his ear. In addition, there is the clear mark on the back of his feet of the cell door having been closed, squashing his feet.

His death is not contested. Neither are the photographs showing that his feet were crushed under the door contested. Nor was it contested in Court that gravity causes liquid like blood to run downwards.

The Magistrate, Mr. Kam Sing, closed the Judicial Inquiry on 10th January, 2002 and after nine months, when we had still heard nothing, the Muvman Liberasyon Fam began a monthly vigil for the Report to be made public. Eventually, after leaks in the Press, the DPP has written to Kaya's widow to say that he is in the presence of Magistrate Kam Sing's report, which finds there is no foul play, and that this dossier is part of the DPP's overall dossier. The widow and the MLF reject these findings and call on the DPP to reject them, too.

We are deeply concerned about the unacceptable delay in prosecution. It is now four and a half years since this famous musician's death.

You are now Prime Minister.

In your Cabinet, you will have a Minister of Justice. The Minister of Justice and Human Rights in the cabinet of Prime Minister Aneerood Jugnauth who is resigning as Prime Minister right now, was Mr. Leung Shing. His record on the issue of Police Brutality was deplorable, and we publicly called for his revocation as Minister.

We thus call on you to see to it that prosecution goes ahead in this case, in the same way as it would if three ordinary citizens (i.e. not Officers of the State) were in charge of a person found dead with 30 injuries at least one of which was sufficient to cause his death, when the person had been placed in their formal custody.

The need for criminal prosecutions for homicide
As you know, past rebellions like those of 1937 and 1943, led to Commissions of Inquiry in the years that followed.

We call first and foremost for ordinary criminal prosecution.

This is the reason for our letter to you today.

Otherwise, this kind of impunity (whereby the Officers of the State responsible for Kaya, are neither prosecuted nor suspended) that led to the rebellion in the first place, will continue. We believe the people were right to feel the anger they felt at the time of Kaya's death. We organized for women's organizations and women's wings of political parties to sign a petition that the police on duty be arrested at once, and charged.

They were not arrested. They have still not been charged.

As you know, the Preamble to the Universal Declaration of Human Rights reads: "Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law."

This failure of the State to act, thus led to an accentuation of the rebellion. The fact that the rebellion was so generalized led to the police authorities' defeat, even at the cost of the lives of three other young men, two killed by the police in Bambous and one by the police in Roche Bois.

Then, in turn, this absence of the police force exposed our present-day society's gross inequality in all its nakedness. Warehouses full of washbasins and chairs sat there unprotected while there are old ladies without hope of ever owning one. This meant that, during a second phase, looting and arson unfortunately became rife, especially by women and children.

And in the third phase, as you know, parts of the State apparatus together with owners of property cynically got together to organize the torching of two villages in the North, thus threatening to convert the rebellion against injustice into a communal war. For this too, there have been no prosecutions.

Mauritian society needs to have the original cause of the riots cleared up.

Who killed Kaya in police cells?

As you become Prime Minister today, we remind you of the responsibility before you.

Where are prosecutions?

The catastrophe of Judicial Inquiries in such cases
Our association sent representatives to sit in the Court and follow the proceedings in the Judicial Inquiry.

We sat with Mrs. Topize, watching what was often strangely farcical.

We saw the representatives of the Director of Public Prosecutions office. They were supposed, as the MLF understood it, to be seeking "an accused" or "more than one accused".

However, they invariably, in reality, cast themselves in the role of defending the very police officers who are the only people who could possible become "accused" in this case of a possible "murder".

It is as though the DPP's office, in association with the police officers, was still persisting in the blind task of finding some offense with which to charge Kaya. Clearly any charge of smoking gandia, however minor, once all forensic evidence had quite literally already gone up in smoke, could never have stuck.

It seems also that the usual "closeness" of the relationship between the police force and the DPP's office contributed to making a mockery of the DPP looking for someone to charge. He could only be looking amongst his close colleagues in the "police". Instead the representatives of the Parquet spent all their time defending the very police officers they are supposed to be finding a prima facie case against.

Mrs. Topize's advocates had a mere "watching brief". They found themselves hurled into the vacuum created by the DPP's office of abandoning of its real role, and that they were hurled into the role of "prosecutor". But of course her lawyers had no powers of inquiry at all, only a watching brief.

The Magistrate, who is also supposed to be finding "an accused", had instead passively reverted to his usual role in the adversarial system: watching the stage-play of the "prosecution" (the widow's lawyers were, absurdly, in this role) and the defense (the Parquet were, equally absurdly, in this role), so as to judge which thesis seemed to be closer to the truth.

In the case of the Judicial Inquiry into the death of the late Kaya, there was thus no proper prosecution at all. There was the DPP acting as defense counsel for all the potential accused. There was the widow's counsel with no more than a "watching brief". There was a magistrate sitting, watching, not investigating or inquiring at all.

If we look at the institution of the Judicial Inquiry in historical context, we find that there has been a moving away from the original system as planned by the lawmakers of the colonial era.

The idea of Judicial Inquiries is outlined Sections 110 and 111 of the District and Intermediate Court (Criminal Jurisdiction) Act. This 1888 law on Judicial Inquiries has not evolved significantly ever since, we understand.

According to the law, when a Magistrate is informed that a person has died (in circumstances including in police custody), "he shall proceed or order an officer to proceed to the examination of the body with the assistance of a medical officer" (Emphasis added). The magistrate or his department is supposed to actually do the examination. It is not supposed to be the police at all.

It was clear that the Magistrate did not get physically involved in the examination of the body of Kaya.

As regards the circumstances of death, the Magistrate, according to Section 111 of the Act, must hold an inquiry at which he must proceed to take the depositions of those "who know the facts and circumstances of the case." It is not supposed to be a police inquiry, but a judicial one.

It is clear from this that the philosophy of the 19th Century colonial lawmaker was that a magistrate, that is to say a member of the Judiciary, should have played a "hands-on" role in the Inquiry into the death of Kaya.

We know that, over the decades and as the State has become more and more of a repressive state, the police have accumulated more and more powers, and more and more means. The judiciary, by contrast, has been left without any means of examining a body, investigating a mysterious death, or questioning the police. Successive governments have made sure that the Judiciary does not have these powers, nor these means.

The basic philosophy of Judicial Inquiries and the role of the Investigating Magistrate have been profoundly altered, by this extension of police powers and reduction of Judiciary's means.

In practice, the Inquiry and the Investigation are carried out by the Police, the only institution that possesses the means to do so.

In the quasi totality of cases, not to say in all cases, the role of the Judicial Inquiry is to endorse the "conclusions" of the Police Inquiry.

A Judicial Inquiry's role has, through the passage of time, become a kind of Judicial Sanction of the Police Inquiry. Sometimes this kind of "Police Inquiry" may not be obsolete: in circumstances like a clear case of suicide in someone's own back yard, it is important that there is some form of Judicial Sanction of the Police Inquiry.

However, the present day Judicial Inquiry (which has degenerated into a mere "Police Inquiry") is certainly not the appropriate mode of investigation in a case of death in a police cell; in fact it has indeed become a public danger.

Who killed Kaya
Mr. Topize died in police custody.

No one but police officers had access to him.

Like the other cases of young men who have been found dead in mysterious circumstances in police cells, beatings and torture are suspected by the public at large. There is mounting evidence that the public are not wrong in this suspicion. We, too, suspect beatings and torture in the case of Kaya, and in many of the other cases, which lead to suicides and "suicides". Even if young men do commit suicide (which we doubt in certain cases), why would they suddenly do this just because Officers of the State have accused them of some offense, often quite minor?

In the case of Mr. Topize, we believe it is likely that he was being tortured for two kinds of reasons, in addition to the usual bestiality displayed by certain notorious police officers. He was beaten up because certain police officers are bigoted and disapprove of Kaya's life-style: his long Rasta hairstyle, his gentle songs, his mystical approach to life. And secondly he was tortured by elements in the police force who, for political reasons, and maybe under political directives, wanted to make him say that he got the cannabis from the organizer of the concert, something he refused to say. Whatever the reason, beating a detainee is, of course, both immoral and illegal.

Because the injuries on Kaya's body point directly to illegal behavior on the part of those who held him in custody, these three officers must be brought to trial. During the trial, perhaps the lies that cover up the torture, will come out. Perhaps some less guilty police officers will be forced to defend themselves by telling the truth about the sadists who are responsible for Kaya's death.

In addition to the police officers on duty breaking the criminal law of the land, we remind you that Section 7 of the Constitution clearly says that "(1) No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment."

The rule of law means that no-one is above the law. This means not just that the King is not above the law, but that officers of the State are not either.

As new Prime Minister, you are responsible for all employees of the State. We formally call on you, by this letter of Protest and by our actions, to give the signal loud and clear to the police force that you do not accept violence by Officers of the State. The way to do this is to make it clear publicly that prosecutions against Officers of the State do go ahead.

Yours sincerely,
Ragini Kistnasamy
for the MLF