On Tuesday, 07 February 2017, the main opposition parties in Dominica namely the UWP and DFP held a peaceful meeting in the city of Roseau in protest of continuing abuse of authority and bad governance of the country. The participants at the meeting called on Prime Minister, Roosevelt Skerrit and his cabinet to resign from office.

Prior to the meeting, the police had allegedly drawn up what was said to be a ‘Memorandum of Understanding’ with the organizers that the meeting would take place in a specific location in the city on a particular date with a start and end time. The opposition did not necessarily embrace this Agreement and expressly noted that the laws of Dominica do not authorize the police to dictate when a political meeting should start or end. However, in the interest of maintaining public order, as far as possible, the responsible opposition tried to have the meeting ended just about the time stipulated in the document as the last two agenda items were being rushed before nightfall.

With no sense of civility and conduct contrary to community policing principles, the police signalled to Mr Linton that the meeting should be brought to an immediate close and the public roads are to be opened to traffic.  Mr Linton, however, proceeded with the meeting for a few minutes advising his audience, “the meeting will finish when it is finished as the police cannot dictate when to stop a meeting. ….the law does not give the police any authority to set the time a meeting should end, as long as the provisions of the Noise Abatement Act do not kick in at 11:00 p.m.”

This is correct; except that the police are authorized to keep the public peace and order and are responsible to ensure that the public streets are clear for free flow and uninterrupted traffic etc. Therefore, the police role was limited to ensuring just that. The police had no authority in law to bring the lawfully organized and peaceful political meeting to a close. Be that as it may, to proceed to charge Mr Linton for inciting a crowd that the police angered by its own unprofessional conduct, is rather preposterous.

One should note, as Mr. Linton correctly observed that Chapter 15:01of the Public Order Act of Dominica DOES NOT require anyone to apply for permission to keep a public meeting. Section 7 of that Act speaks to the power to prohibit a public meeting. “The law only authorizes the Minister to issue an order that can prevent a meeting as former PM Edison James did when he was Prime Minister to correctly declare that no public meeting could be held in Mahaut on 26 August 1996.

The Public Order Act gives the Chief of Police no powers to set the time and place of a meeting.  Therefore, the gentleman’s agreement or MOU said to be signed in that regard is null and void in law.  Importantly, the police have not prosecuted anyone for the actual breach of the law or for the so-called conditions placed by the Chief of Police.

The police were irrational, unprofessional, overanxious and very impatient. They proceeded to stop the peaceful assembly of UWP supporters, who were joyously dancing and singing in the streets. Within minutes, the para-military arm of the police force, the SSU, appeared in full riot gear with guns ready to shoot at the people. With the police having intervened, the meeting forcibly over and the organizers having departed with the majority of the people still gathered, the police were ordered to disperse the lingering peaceful crowd with an excessive show of force, which a professional police force would have handled differently.

The unnecessary police aggression infuriated the crowd and this was the match that lit the fire that day. It was not anything that Linton, Thompson or Edison said or did.  The unnecessary, heavy-handed tactics of the Skerrit police against the hitherto peaceful gathering angered a section of the gathering into a reactionary angry mob, especially when the truck carrying the entertainment system and speakers was prohibited from proceeding northward along Kennedy Avenue to the government headquarters. The truck was forced to reverse into the dense gathering.

The riot that ensued was due to the improper conduct of the police that enraged the lingering crowd of predominantly young people and agitated them into violent action as excessive force was applied by the police. Before long, the protesters took on the police and soon the disturbances escalated throughout the city beyond the control of the police.

Within days of the event, several leaders of the DFP and UWP were arrested in mid-night/dawn raids and hunted down as violent criminals, placed in handcuffs and taken to jail. Some were subsequently charged with obstruction and others were charged with incitement following several ‘coco-marque’ in the courts. To date, the matter has been adjourned over seven times while a bench warrant is still pending for the arrest of Dr Fontaine. Many have noted that since the bogus charge of ‘incitement’ to murder of Attorney Alick Lawrence against Hon.Danny Lugay, the DLP government has been engineering these dubious traps to get members of the opposition on such charges by any means. The events of February 07, 2017, presented that opportunity but there is absolutely no justification in law for any charge of incitement against Mr Linton or for a Bench Warrant to be issued for the arrest of anyone in this matter.

The summons that the Leader of Opposition was served complained of alleged inciteful words and deeds in law that caused persons to come out in groups to endanger public peace in the city of Roseau following a meeting organized by UWP and DFP ‘with the objective to overthrow the government of Prime Minister Roosevelt Skerrit’. The allegation is that the chairman of the meeting, Mr Nicholas George, a former senior police officer abandoned the platform leaving Mr Linton in defiance of a “lawful” order to end the meeting. However, Mr. Linton, so intent on creating, strife, disorder and mayhem, proceeded with the meeting hoping that the police would try to stop him. When he realized that the police were not taking his bait, he ended his belligerent tirade minutes before 5 p.m. Even if all these machinations were true, where are the words that are the basis of the incitement charge?

The government further alleges that Linton had pre-planned intentions. The government’s rumour is that he already knew what was to happen after the meeting so he left the area, went home to discuss the next step of the plan in the privacy of his home with others and later he returned to the scene to brief his colleagues, who were still obstructing the police, and who were trying to unblock the road in order to allow the flow of traffic so that business could return to normal in the area- as they claim.

According to the police, just by his return, his presence at the scene without saying anything to the angry crowd that had begun attacking the police with stones and bottles, Linton was guilty of incitement. The government claimed that Mr. Linton followed a section of the crowd as they went around Roseau setting fires and he was photographed taking pictures of the fires, which he forwarded to others. The government framed its ludicrous claims by stating,
UWP backed hooligans selectively targeted only businesses and private property owned by supporters and sympathizers of the Dominica Labour Party – Dons-a-Divas (Owned by Melissa Skerrit), Valentines (Melissa Skerrit father), Benton’s (Melissa Skerrit brother), PIWI’S Ice Cream (Police Inspector Corbette), Duncan Stowe Law Office,(A CBI peddler/passport seller), Digicel office (Doctor Fereira’s building), Out Door World (Khimo Astaphan), Muslim Store (Shabazz), Maureen Blackmore business (Wife of Minister Blackmore) etc.”

A day after the police intimidated the peaceful protesters into a riot, the National Security Minister, Hon. Rayburn Blackmoore condemned the violence that engulfed the city of Roseau following the peaceful public meeting of the opposition parties. In a statement on Wednesday, 08 February 2017, Minister Blackmoore –as expected he would have done, laid the blame squarely at the feet of the UWP and “its operatives.” He advised the world, Ladies and gentlemen, the stage was set by the leadership and operatives of the UWP for the attack on the police, the acts of arson and the targeted destruction of various properties in the city of Roseau…all of the actions were done by the mouths, hands and feet of the leadership and operatives of the UWP.”

Minister Blackmore promised, when the investigations are concluded, those responsible for the mayhem and destruction will be arrested and be dealt with as the law pertains. There is no doubt that the guilty ones will be brought to justice and I don’t think that is the police who will be getting arrested as Linton suggested.” As it turned out the Minister directed the arrest of Linton and officials of UWP including the current Speaker of House of Assembly, who eventually betrayed his own party for clemency.

Incitement as an inchoate common law offence characterized as persuading, encouraging, instigating, pressuring, or threatening words and action causing or to cause another to commit a crime or an act of urging-on or spurring-on or rousing to action to commit a crime applies. There is no specific legislation in Dominica governing the crime charged as per the summons served by the prosecution. This common law offence has been abolished in some jurisdictions. It has been replaced by a statue in others such as the English Crime Act of 2007, which replaced the common law with 3 new statutory offences of encouraging or assisting in the commission of a crime. Essentially, in accordance with the common law definition of incitement, it aligns neatly with the general dictionary definition i.e., the  word  carries the common forms of behaviour covered by the verbs  ‘to command’,  to request’, ‘to propose’, to ‘advise’, ‘to encourage or ‘to authorize’- none of which is associated with the words or conduct of the leaders of UWP.

Clearly, based on the applicable common law rules, there is nothing to sustain the charge of incitement that resulted from the incident of 07 February 2017. None of the accused advocated violence or any other criminal activity, which is a necessary element for the common law charge of incitement. Where incitement is subject to legislation, it is necessary that the inciting words or acts must be acted upon in accordance with the inciter’s intention. For a person to be guilty of incitement, an accused (a)  must intend that the offence/crime that is the subject of the incitement be committed, and (b)  the inciter must intend or believe that any fact or circumstance, the existence of which is an element of the offence in question, will exist at the time when the conduct constituting the offence is to take place.

Generally speaking, there is no requirement that a person incited to commit an act, but rather, the inciting behaviour must be within the knowledge of the other person. The courts have noted that where such legislation exists; it is intended to be enforced for the most brazen activities requiring proof of specific intent of advocating and persuading others to commit criminal activity. In order for incitement to be proven, the onus is on the prosecution to show that there was incitement to commit an offence.  as stated by Isaacs J in Walsh v Sainsbury;

“The mere fact that A “incites to” or “urges” the commission of an offence or offences against a Commonwealth law is enough to constitute A an offender. He may “incite” or “urge” a particular person or generally, but, the “incitement” or the “urging” once proved, the offence is complete. Withdrawal does not obliterate it, though no doubt it may affect the measure of punishment. But to be itself an offence the “incitement” or the “urging” must be to the commission of some ‘offence’.”

Under the common law, incitement is not in itself a crime, unless what was specifically incited is a criminal offence, in this present case-civil unrest, disobedience or riot. Incitement can also include a person who incites another to do an act by threatening or by pressure, as well as by persuasion. In any event, what is said or done by the alleged inciter depends upon the context in which said or done and the circumstances. Context, especially in this nasty political environment in Dominica is paramount.  The words uttered and/or the deeds accused of must be responsible for the commission of an eventual crime.

As an inchoate offence, there must be mens rea or intent or recklessness but most typically intent in the common law. The alleged inciter must intend the others to engage in the behaviour constituting the offence, including any consequences which may result, and he/she must know, ought to know or believe (or possibly suspect) that other will have the relevant intent to commit the crime the results from his words or action. Hence, one can only be found guilty in common law if the individual said to be incited knew that the action he was asked to carry out amounted to an offence. For these reasons, it is generally rare that somebody is convicted of incitement.

According to one Professor Epps commenting on the impeachment case of Donald Trump, “Incitement is not a crime under the First Amendment unless it meets certain criteria. First of all, it has to be intended to cause violence and inference of that intent as circumstances thereof.  It also has to be likely to cause violence. If one goes downtown and says to two drunks standing in front of a bank, “let’s rob this bank right now”, I haven’t really incited anybody, because it’s not very likely they’ll rob the bank. If I say let’s meet here tomorrow and rip things up, I’m not inciting because – in the words of the Supreme Court – where there is time for better counsels to prevail, the remedy for speech is more speech. This means that the speech complained of has to be likely to cause imminent violent action, which is absent in the case against Mr Linton. However, whereas Trump was rightfully impeached as per the evidence on record and acquitted by spineless Retrumplican senators, the political charge against Lennox is being tried in court as a legal matter by a spineless magistrate motivated by politics.

With this in mind, Magistrate Asquith Riviere adjourned the case against former Prime Minister Edison James ‘sine die’, rejected a request from the prosecution to join the matter together with Opposition Leader, Hon. Lennox Linton and allowed the political persecution of Mr Linton to continue with repeated adjournments to add political salt to the illegal injury. Although, the court has ruled it has no evidence before it against Former Prime Minister Edison James and current Speaker Joseph Isaac, the case against Isaac was discontinued but the case against Edison James has only been adjourned ‘sine die’ and could be resumed if the political machinery so desires.

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