A Rape Complaint Is Not a Disciplinary File

 

592GUARDIAN♦ACCOUNTABILITY♦INTEGRITY IN JOURNALISM♦GUYANA

   A Rape Complaint Is Not a Disciplinary File

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OPINION BY : Hem Kumar October 2026

Constitutional safeguards must be respected. They must not become an explanation for criminal-investigative paralysis.

Retired Assistant Commissioner Paul Slowe’s intervention identifies the distinction that must now anchor the discussion: an allegation of rape is not merely an employment matter within the Guyana Police Force.

The operative word is “accountability”. Constitutional accountability for holding office. Criminal accountability for alleged wrongdoing. Institutional accountability for conducting a credible investigation. Political accountability for ensuring that oversight bodies are functioning.

None should be allowed to disappear behind another.

What the Attorney General’s clarification actually addresses

The Attorney General’s Chambers’ position, as publicly reported, is that Commissioner of Police Clifton Hicken lacks independent constitutional authority to exercise disciplinary control over Deputy Commissioner Karimbaksh. The reported advice addresses the Commissioner’s attempt to direct Karimbaksh to proceed on leave and the constitutional requirements governing action against an officer of his rank.

That is a serious legal question. A Commissioner cannot acquire a disciplinary power merely because exercising it would be popular. Nor can an otherwise unlawful direction be made lawful by calling it administrative

.But identifying a limit on the Commissioner’s disciplinary authority does not answer what is happening to the criminal investigation.

It does not tell the public whether relevant evidence has been secured. It does not establish the independence of the investigative team. It does not explain whether the file has reached the Director of Public Prosecutions or what further investigative work is outstanding. Most importantly, it does not establish that an officer’s constitutional position shields him from criminal process.

The Government is entitled to explain why a particular leave directive was legally defective. It is not entitled to let that explanation stand in for an account of the investigation into the alleged crime.

Two legal processes—not one

Disciplinary proceedings concern the standards, obligations and continued service of an officeholder. Criminal proceedings concern whether an offence has been committed and whether the evidence supports prosecuting an accused person.

The same alleged conduct may raise both questions. But the Constitution’s provisions governing police disciplinary control do not replace the criminal justice system. Article 187 separately empowers the DPP to institute criminal proceedings against “any person,” take over proceedings instituted by another person or authority, and discontinue proceedings within the constitutional framework. 

That distinction matters because the public discussion has become entangled in the question of which commission, tribunal or office may act against a Deputy Commissioner.

Those questions require answers. They do not exhaust the State’s obligations.

The public should be told plainly whether anyone in authority contends that a disciplinary tribunal must first be established before the criminal investigation can advance. If that is the position, the legal authority for it must be identified.

Nothing in the constitutional provisions reviewed establishes such a prerequisite.

What Slowe gets right—and where precision matters

Slowe’s essential point is sound: superior police rank does not itself confer immunity from ordinary criminal investigation or prosecution.

The police’s responsibilities include the prevention and detection of crime and the apprehension of offenders. Those functions are identified under Section 3(2) of the Police Act in the Force’s own reporting. They do not cease to matter because a suspect occupies a senior office.

His reference to the “last-joined constable” makes that point forcefully. A junior officer does not need disciplinary jurisdiction over a superior to perform lawful criminal-investigation functions.

But the proposition should not be stretched into a claim that any constable may independently decide to institute this particular charge without regard to evidential requirements, applicable procedures or prosecutorial oversight. Article 187 expressly recognizes proceedings instituted by persons or authorities other than the DPP while preserving the DPP’s constitutional powers to take over or discontinue them.

The defensible principle is straightforward: rank is not a criminal shield; lawful procedure still applies.

Nor should anyone demand a charge merely to demonstrate that the Government has acted. The proper demand is for a competent investigation and an evidence-based prosecutorial decision—not a predetermined result.

Constitutional rights do not disappear when a complaint is made

It would be equally wrong to argue that an accused person loses constitutional protection once a crime is reported.

Karimbaksh retains the rights afforded to an accused person, including the presumption of innocence and protections governing liberty, detention and a fair hearing. Respecting those rights is not indulgence. It is the standard by which the criminal justice system must operate. 

The distinction is between rights within the criminal process and immunity from that process.

Protection against arbitrary removal from office does not establish immunity from investigation. Equally, public outrage does not authorize unlawful arrest, unsupported charges or punishment without due process.

A credible argument must hold both principles at once.The accused must not be convicted by public declaration. The complainant must not be denied an effective investigation because the accused is powerful.

The vacant commissions expose a separate failure

The reported expiry of the Judicial Service Commission’s term, with reappointment still pending, adds another dimension to this controversy. So does the earlier absence of a constituted Police Service Commission.

These bodies are not decorative additions to government. They form part of the constitutional machinery through which public power is exercised and constrained.

Where the Article 225 procedure applies, the President appoints the investigating tribunal in accordance with the advice of the Judicial Service Commission. The JSC’s role is therefore not accurately described as simply convening a tribunal on its own initiative. Constitutional compliance matters at each stage.

If an institutional vacancy prevents a particular constitutional procedure from operating, that is a serious governance problem requiring correction.

But it must be described accurately. A blockage in the machinery for removal from office is not automatically a blockage in the machinery for investigating an alleged crime.

The authorities must identify which action is legally unavailable, why it is unavailable, and what steps are being taken to restore the institution required to perform it. They must separately explain the progress of the criminal inquiry.

A vacant commission cannot be allowed to swallow the entire discussion.

Article 225 itself requires a clearer explanation

There is also a constitutional-text question that should not be concealed beneath confident public assertions.

Article 211 addresses the appointment of the Commissioner and Deputy Commissioners. Yet Article 211(4), in the constitutional text reviewed, expressly applies Article 225 to “the office of Commissioner of Police.” Article 212 separately addresses disciplinary control over officers at or above Inspector rank, subject to Article 211(1)

The Government’s reported position that removal of a Deputy Commissioner must comply with Articles 211(4) and 225 therefore calls for a clear explanation of the interpretive reasoning and any relevant judicial authority. That observation is not a declaration that the Attorney General’s interpretation is wrong. It is a demand that the interpretation be explained.

Constitutional clarity cannot consist merely of naming provisions. The public should be shown how those provisions connect, which powers they confer, which officeholders they cover, and what legal consequences follow.

Whatever the eventual answer on removal, it must not obscure the separate criminal-investigation question.

Remaining in office creates questions that assurances cannot answer

The concern about Karimbaksh’s continued service is not simply symbolic. The reported reversal of the leave directive, following legal advice, makes the investigation’s safeguards all the more important.

A senior officer’s position raises legitimate questions about access to official information, professional relationships, institutional influence and the confidence of potential witnesses.

These are risks to be assessed and controlled—not allegations that interference has already occurred.

That distinction is important. An independent investigation protects the complainant, but it also protects the accused from a process vulnerable to claims of favoritism, institutional hostility or compromised evidence.

The correct response to a legally defective leave direction is therefore not to abandon concern about investigative integrity. It is to identify lawful safeguards and explain them.

Which officials supervise the investigation? Do its members have reporting relationships or professional dependencies involving the accused? Who controls access to relevant records? What arrangements protect witnesses? Who assesses any complaint of interference?

The public need not receive confidential witness statements to receive meaningful answers.

Independence must be demonstrated

An investigation does not become independent because a police statement describes it as impartial. Where the accused is a Deputy Commissioner and the complainant is reportedly another serving officer, the structure of the investigation deserves particular scrutiny.

That does not mean every junior investigator is incapable of professionalism. It means that the institution must confront the conflict-of-interest risks created by rank, hierarchy and professional relationships.

External investigative assistance or genuinely independent supervision should therefore be seriously pursued. The authorities should explain the legal arrangements, reporting structure and safeguards under which such assistance would operate.

The demand is not for foreign participation as a public-relations exercise. It is for an investigation sufficiently insulated from the accused’s institutional position to command confidence.

If the authorities insist that an internal team is adequate, they must explain why. “Trust us” is not a substitute for an accountable structure.

The “confrontation” issue remains unresolved

Minister Oneidge Walrond’s reference to a proposed “formal confrontation” also requires a precise answer. Her reported description of the investigative process included taking statements and holding such a confrontation.

Section 42 of the Sexual Offences Act provides that, during an investigation, a complainant cannot be required to recount the complaint or any part of it in the accused’s presence unless the complainant wants to do so. It also restricts requiring the complainant to view or be in the alleged perpetrator’s presence, with protected arrangements for identification procedures.

The law does not impose a routine face-to-face confrontation.

The Minister should therefore explain whether she meant investigators putting allegations to the accused in a separate interview, or an encounter involving both parties. If the latter was proposed, the authorities must explain how the complainant’s freedom to decline is being protected.

Agreement must not be inferred from silence or submission to authority. The obvious concern is whether a serving officer could feel pressured to accept a procedure presented by superiors as necessary.

The issue here is not that Section 42 requires forced confrontation. It is whether those administering the law understand and will honor its protection against compulsion.

Presidential leadership is necessary—but not unlimited

The President must take responsibility for addressing institutional vacancies and ensuring that the executive provides the lawful resources and cooperation needed for an effective investigation.That does not mean the President can invent a disciplinary power or direct that a particular person be charged.

The distinction between leadership and unlawful intervention matters. Constitutional procedures cannot be overridden merely because compliance has become inconvenient. Previous litigation concerning the suspension of Police Service Commission members demonstrates the legal consequences of failing to follow the applicable constitutional process.

The President’s proper role is to ensure that the constitutional machinery is restored through lawful appointments, that responsible officials account for their actions, and that investigative independence receives practical support.

The DPP’s prosecutorial role must remain constitutionally distinct. Article 187 provides that, in exercising the specified powers to take over and discontinue proceedings, the DPP is not subject to the direction or control of another person or authority.

Political leadership should make lawful accountability possible—not dictate its outcome.

The questions that now require answers

The public does not need another broad assurance that the matter is being treated seriously. It needs a limited but meaningful account of the process:

♦ Is the criminal investigation proceeding separately from any disciplinary or removal inquiry?

♦ Has the file been submitted to the DPP? If not, what broad categories of investigative work remain outstanding?

♦ What independent supervision exists, and how are conflicts involving the accused’s rank and professional relationships being managed?

♦ What lawful safeguards govern access to potentially relevant records and communications?

♦ What protection and independent support have been offered to the complainant and witnesses?

♦ What did the Minister mean by “formal confrontation,” and has any such encounter been proposed?

♦ What precise constitutional reasoning supports the Government’s position on disciplinary jurisdiction over a Deputy Commissioner?

♦ What steps are being taken to restore the commissions whose vacancies are said to impede action?

Answers can be provided without publishing evidence, exposing the complainant or compromising a future prosecution.

Transparency does not require trial by press conference. Confidentiality does not justify institutional silence.

The test is whether the law operates equally

This case must not become a contest between those who demand punishment before proof and those who invoke procedure without accounting for progress.

There is a lawful course between those failures: investigate competently, protect the complainant, preserve evidence, respect the accused’s rights, obtain independent prosecutorial assessment, and use the proper constitutional machinery for any action affecting office.

The State must do each of those things within its proper authority.

If a commission is absent, restore it. If a proposed administrative action is unlawful, identify a lawful alternative or explain the legal limitation. If the evidence is incomplete, complete the investigation. If a prosecutorial decision is pending, say so without attempting to dictate it.

But do not present a constitutional difficulty concerning tenure as though it answers an allegation of rape.The public is entitled to more than a description of what the Commissioner cannot do. It is entitled to a credible account of what the criminal justice system is doing.