In a lengthy opening statement on October 7th at a preliminary hearing at the Arthur Chung Conference Centre with the families of the victims of the MV Barima tragedy, the Chairman of the Commission of Inquiry, Godfrey P. Smith set out in some detail the six main areas of inquiry.
These are: the seaworthiness and safety of the vessel; passenger and cargo operations; the qualifications, competence and conduct of the crew; the search, rescue and recovery; the regulatory and institutional oversight; human factors and emergency decision-making.
Among other things, he said “We will examine the condition and seaworthiness of the BARIMA. That includes matters relating to its physical condition, stability, machinery, maintenance, certification, inspection, operational condition and compliance with applicable safety and other regulatory requirements. We will ask whether the BARIMA was fit for the voyage on which she embarked and whether the conditions in which she operated were consistent with the requirements imposed upon her”.
In relation to passenger and cargo operations, he said: “We will examine the circumstances and methodology by which passengers boarded the vessel and cargo was loaded. Questions concerning passenger numbers, manifests, cargo quantities, cargo placement, loading procedures, stability, the carriage of potentially hazardous material, the availability and adequacy of lifesaving equipment, and compliance with regulations will all be inquired into. I emphasize that we will not approach these questions with any predetermined conclusion but will attempt to establish the facts based on hard evidence”.
As it relates to the crew, he said that the “qualifications, training, experience and operational readiness of the master, officers and crew will be examined as well as their conduct before and during the voyage and their actions when the emergency arose. What information was available to those persons manning the BARIMA? What decisions were taken by them? What alternatives, if any, were available? And were those decisions taken reasonable in the circumstances as they existed at the relevant time?”
With two of the crew members behind bars on 73 counts of murder, it is difficult to see how this aspect of the inquiry will proceed without jeopardizing the legal case for the accused.
Mr Smith also said that his team of commissioners “will inquire into the adequacy, timeliness, coordination and effectiveness of the search, rescue and recovery operations which will require examination of the actions of the relevant public authorities, emergency services, maritime agencies and other persons who responded. We will consider the information available to them, the resources available, the communications received and transmitted, the decisions made, and the manner in which the response unfolded. The purpose is to determine whether the response, rescue and recovery efforts were adequate in the circumstances and, if not, why not”.
On the matter of regulatory and institutional oversight, the Chairman said “We will inquire into the systems of supervision and oversight applicable to the BARIMA. This will include consideration of the roles and responsibilities of relevant state institutions, including the Transport and Harbours Department and the Maritime Administration Department. We will examine inspection, certification, maintenance systems, operational procedures, supervision, staffing, training, enforcement and regulatory oversight where those matters are relevant. What rules existed to ensure passenger safety and whether, and to what extent, were they implemented and enforced?”
Mr Smith also went to great pains to underline that this was a Commission of Inquiry and not a criminal trial.
“Our task is to establish facts, make findings within the scope of our mandate, identify causes and contributing factors, identify shortcomings or failures in a way that the court system does not, and make recommendations. Our recommendations are not legally binding, and it will be for the government or other relevant public bodies and organizations to decide what action will be taken in response to our report”. He did go on to say that a report of a Commission of Inquiry may be the catalyst for civil and criminal proceedings to follow.
Addressing the matter of procedural fairness, Mr Smith asserted “We have the power to summon witnesses, require the production of relevant documents and other material, require and even compel persons possessing relevant information to give evidence”.
Further, he said that “Where the Commission considers that any person, institution or organization may be subject to, or who has been subject to, adverse criticism in these proceedings, or who may be subject to adverse criticism in its report, such person or organization shall be afforded the earliest practicable opportunity to fully and adequately respond in accordance with the Rules and the principles of natural justice”.
Given the broad scope of the inquiry and the powers of the Commission outlined by the Chairman, it is impossible to conceive that the two ministers with direct responsibilities for these areas: Ministers Edghill and Indar will not be summoned to testify and be cross-examined. Yet, from the inception of the disaster on July 18, neither minister has seen the need to accept that they have to be accountable for the evident failures and President Ali has also failed to act.
To make matters worse, the Commission of Inquiry has on two separate occasions demurred on the question as to whether the ministers will be summoned. Whether they are summoned on day one or at the back end of the inquiry it is patently clear that the CoI will have little credibility unless both ministers testify. How the Commission settles this matter will determine very quickly whether it is serious about following “the evidence wherever it leads and to frankly and fearlessly report our findings”.
Discussion