The Jefferson Cumberbatch Column – Crime, Punishment and the Rule of Law II

Jeff Cumberbatch – Chairman of the FTC and Deputy Dean, Law Faculty, UWI, Cave Hill

It was no surprise, for at least two main reasons, that popular reaction to last week’s column was largely negative. In the first place, it treated arguments against the implementation of the death penalty, a veritable no-no at this time when most citizens feel under siege at the wanton displays of recklessness effected through the indiscriminate discharge of firearms in crowded public places by lawless men hell-bent on ensuring the death of a foe, no matter the nature of the collateral damage that might be caused. For the average Jack Barbados, such misconduct is deserving of nothing but the ultimate punishment should the death of anyone be the result.

Surprisingly, for a jurisdiction steeped in selectively following Biblical instruction to the letter, my prayer in aid last week of the words of Jesus, according to Matthew, in response to the Old Testament diktat of an eye for an eye availed nothing; one reader assured me that Jesus’s exhortation rather to turn the other cheek was meant for those of higher moral fibre only, leading to the inescapable conclusion that those of us not so endowed should adhere to the spirit and letter of the Judaic injunction and take a life for a life.

Second, as with other issues in the local public domain, my stance differs fundamentally from the seeming majority local view and legislation in a number of instances; among them, corporal punishment in schools; capital punishment; and the right of an adult man or woman to practise his or her sexual orientation in private with a similarly consenting adult.

As it is with most debates in this jurisdiction, excluding of course those dealing with partisan politics or rather partisan political personalities, the effluxion of a period of nine days or fewer has served to remove the allure of a discussion of the merits of capital punishment or, rather, the demerits of its non-implementation, from the public domain. However, there are still one or two aspects of the discourse that merit commentary and I propose to do so briefly in today’s column.

There is, first, the proposition that I have heard repeatedly that we should seek to withdraw from any international treaty that currently constrains our implementation of the death penalty. A few readers may recall that a similar sentiment was an early catalyst for urging the adoption of the Caribbean Court of Justice [CCJ] as the final appellate tribunal for the region. Since the Judicial Committee of Her Majesty’s Privy Council [JCPC], some loosely reasoned, had effectively stymied the carrying out of the death penalty by its jurisprudence, the region needed a final court that would truly reflect the aspirations of the people of the region in that regard.

That reasoning however, failed to take into account that the reality that law is not a slave to populist concepts of justice but, rather, a principled divination of what is fair and just in the circumstances. Moreover, the averral that the CCJ should follow the precedents established by the JCPC unless these were incorrect in its view dimmed the hopes of many in the region for the soonest “popping of the necks” of those convicted of murder.

There has been some legislative effort towards this desideratum. Barbados had amended its Constitution, in a reference I made last week, so as to foreclose any argument by a convicted murderer that the sentence of death imposed on him was mandatory and thus unconstitutional or that too lengthy a period has elapsed between the imposition of the sentence and the proposed date of his execution as had been successfully argued in Pratt and Morgan v R.

However, in a later volte-face, the alteration of that provision was proposed in a Constitution Amendment Bill of 2014 that, while it preserved the constitutionality of the death penalty, nevertheless removed the thitherto existing constitutional legitimacy of the mandatory sentence of death, and itself foreclosed a claim of unconstitutionality based on the conditions under which the convicted man was held pending his execution.

Interestingly enough, that 2014 Bill, following the ruling of the Inter American Court of Human Rights, also substantially amended the notorious saving law clause in section 26 by having all existing law construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with sections 12 to 23 (the fundamental rights provisions) of the Constitution.

It will be recalled that among the orders of the IAHCR in Boyce et al v Barbados (2007) were that

(i) “The State shall adopt, within a reasonable time from the date of notification of the present Judgment, such legislative or other measures as may be necessary to ensure that the imposition of the death penalty does not contravene the rights and freedoms guaranteed under the Convention, and in particular, that it is not imposed through mandatory sentencing, in the terms of paragraphs 127(b) and 128 hereof…” and

(ii) “The State shall adopt, within a reasonable time from the date of notification of the present Judgment, such legislative or other measures necessary to ensure that the Constitution and laws of Barbados are brought into compliance with the American Convention, and, specifically, remove the immunizing effect of section 26 of the Constitution of Barbados in respect of “existing laws”, in the terms of paragraphs 127(c) and 128 hereof ”.

The proposed Bill (I am unsure of its current legislative status) would seek now to give effect to these orders of the human rights body.

So far as denunciation of the American Convention on Human Rights is concerned, the Treaty itself makes eminently clear provision for this in Article 78. 1.

The States Parties may denounce this Convention at the expiration of a five-year period from the date of its entry into force and by means of notice given one year in advance… Such a denunciation shall not have the effect of releasing the State Party concerned from the obligations contained in this Convention with respect to any act that may constitute a violation of those obligations and that has been taken by that state prior to the effective date of denunciation…”

The critical issue is whether any local governing administration has the geopolitical or other fortitude to withdraw from a human rights treaty solemnly entered into a mere few decades ago simply so as to enable the hanging of individuals. After all, what will the other States parties think of us?

A side issue of the debate has been the deterrent effect of hanging and the true sequelae of the 1999 multiple hangings in Trinidad & Tobago. There have been assertions that there was an immediate decline in the murder rate thereafter, but the statistics do not bear out this. While there were 98 murders in 1998, the year preceding the executions, and a declined to 93 in 1999, by the year 2000, there were 118 murders; a figure that would rise to 151 in 2001, (a mere two years after the hangings) and the most ever recorded in a single year since 1984. It may be argued that these figures clearly do not corroborate any assertion of a deterrent effect because of execution.

The usual retort to this is that hanging is not to deter but rather to punish for the taking of a life. Is it too much to ask then that such an ultimate step for which we are all responsible should be subject to the most stringent safeguards if the rule of law is to prevail?

37 comments

  • Jeff

    Your arguments seems well-reasoned

    We were disappointed however that you found no legal connection between common law and current public opinion. Is common law not to be some amalgam of public opinion?

    It cannot make sense that a book written, they say some thousands of years ago, should continue to interfere in the science of crime and violence. Continuing changes have to be made given all the lies so written.

    Notwithstanding your reasonable approach to the death penalty for murder, we are minded that there are other crimes conducted by elites which are worthy of death.

    Maybe those (elites) who argue that the death penalty prevents murder would also be forestalled from committing economic crimes in our society if state-sponsored murder was the penalty.

    For us these are the only circumstances for which the death penalty should be mandatory.

    But we must also add some complexity to our position.

    In all other circumstances the death penalty should be abolished or at least constrained in the manner you suggest.

    We have known for a long time that it is disparately applied but we continue to kill poor people who have limited access to proper legal counsel.

    Personally, this writer would refuse any state party’s attempt to seek this misguided remedy should any family member be murdered. And have long given instruction that should this writer be murdered no such state sponsored sanction should be sought. There can be no difference between state-sponsored murder……………………… and murder.

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  • Caswell Franklyn

    Jeff

    Nothing you wrote last week or any other time could have given more aid and comfort to the deviants in this society than the Attorney General’s public statement to the effect that these young thugs should be given a second chance.

    At the height of these shootings, the AG appears to be saying to these miscreants go ahead and kill, you are deserving of a second chance.

    At this time, his message should have been one that was tough on crime. However, to make matters worse, he was joined in his sentiments by the idiot from Education.

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  • Thanks to the ill informed mis-information coming from those who CLEARLY have no grasp of the topic, – and this obviously (based on this article alone) includes Jeff, …our collective societies have been degenerating into chaos almost in direct proportion to the level of ‘education and knowledge’ that we have applied to the situation.

    But the proof of the pudding is in the eating..
    …and one would think that, given the shiite taste of the ‘pudding’ being produced by the kind of thinking that Jeff seeks to defend – based on ‘Laws’ written by equally ill-informed and clueless jokers, they would take a step back …. and admit that they DO NOT KNOW.

    The argument that we should be constrained by ‘laws’ imposed by others who themselves are examples of total FAILURE in the area of criminal justice is, in itself, surprising coming from Jeff…
    ….almost as if we are unable to think for ourselves; unable to visualise our own way forward… and CERTAINLY unable to LEAD in innovative and proactive ways in this area.

    No point in even talking about the bible….Bushie may as well talk gibberish … it would be just as enlightening to Jeff.

    The Bible outlines a spiritual LAW that works as per ‘Mother Nature’… which says ‘an eye for an eye…’ or, taken proactively, ‘do unto others as you would that they do unto you…’

    However,
    In addressing his SPECIALLY CHOSEN disciples, Jesus set a higher standard for them related to ‘turning the other cheek…’
    What is so difficult to understand…? shiite man!!!

    The truth is…. that such persons can AFFORD to turn the other cheek, …cause any jackass foolish enough to strike such a bushman will need all the prayers and comfort that they can possibly get… such will be their peril…(Touch not the Lord’s anointed…)

    The so-called ‘Laws’ upon which Jeff base his arguments are conceived by people like Froon, Stinkliar and Adriel…..and written by such specimens as Hal Gollop and the Smiths…..

    Need we say more…?

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  • As someone who grew up as a Christian (Bethel Methodist Church and Sister Waite in Mayer’s Land), I fully 8under Christian Criminology, even if I do not agree fully with it. An eye for an eye conflicts with turn the other cheek.
    However, discussions about crime and punishment in Barbados start from the conservative nature of the popular culture, but at some point it must be put in historical context and where better to start than in the United States, the home of modern democracy.
    What is even more pertinent is that the American social order is crippled with events shaped by the civil war and slavery; it is a nation that cannot escape its past.
    In the US, the criminal justice system presumes that black people, and in particular men, are guilty until they can prove their innocence. In Barbados, in the absence of race and colour, social class plays a prominent role: the boys on the block, or those unfortunate not to have a formal education are guilty until they can prove their innocence. (think of the number of men in Barbados we think are guilty although they have never been charged, far less convicted in a court of law).
    After the civil war, southern states started to look at ways of keeping black men in order; some states passed the Black Codes, which introduced new laws such as vagrancy (in the UK a similar law introduced to control soldiers returning from the Napoleanic wars, was re-introduced in the 1970s in the UK to control young black men, the so-called Sus laws, it is now top and search, legitimised by the savagery of the Jihadists) and loitering (think boys on the block).
    But a black man appearing before a court to be convicted was a luxury. Between the end of the civil war and World War Two, thousands of black men were publicly lynched, bypassing the formalities of a legal trial. For many, a legal trial was a luxury, with many convicted within minutes (see Emmett Till).
    By the end of the 1930s, the number of black men convicted and sentenced to death out numbered the number lynched. In short, the courts with their jury trials were used to control angry white men who just wanted to lynch people. (see: Scottsboro Boys). Between 1910 and 1950, black people had formed just 22 per cent of the Southern population, but 75 per cent of those executed.
    The decline in lynching coincided with the civil rights era, and, more importantly, with the massive growth of the imprisonment of black people. Even today, African Americans are 13 per cent of the US population, but 42 per cent of those on death row and 36 per cent of those executed since 1976 – with four-fifths carried out in the old South.
    Not to bore people, the history of crime and punishment in the West has correlated with race; when communities and right-wing organisations want to celebrate the so-called heroes of the south, we must be cognisant of what they are in fact celebrating.
    Equally, when conservative Barbadians call for punishment for young men (they are mainly men) who commit felonies, especially violent offences, they often use class and education in place of colour to differentiate themselves from the alleged offenders.
    In Barbados we have one particular magistrate who struggles to control herself from being the executioner of young men who come before her.
    The real question is when we protest, whose law are we defending; whose order do we want to preserve.

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  • Bushie

    You speak as if your morality is infallible.

    We know that the bible is replete with lies.

    That it is a hodgepodge of writings which have people doing thing before they were even born.

    That it was written by men, the Catholic popes and their family, the Piso family

    Certainly, the bible cannot be any supreme source of knowledge for sensible people not influenced by foolishness.

    We have tried for decades to separate spirituality from religion to little avail.

    Therefore, we must assume there is no difference.

    How can it be that in societies plagued with economic injustice could anybody spiritually possessed could support state-sponsored murder especially when we know that we have been killing innocent poor people as DNA testing has clearly shown.

    Does the Koran not also say that to kill one innocent person is like killing the whole world?

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  • Well Well & Consequences Observing Blogger.

    Bushman…keep away from that lying, deceitful bible, it will run you into trouble.

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  • @ Pacha
    You speak as if your morality is infallible.
    +++++++++++++++++++++++++++++++++
    It is NOT “Bushie’s morality”.
    it originates from a MUCH higher source….. and it IS infallible.

    The Bible was never intended for your understanding….and never will be….and you are correct, ..it IS filled with clear conflicts, confusion and incomprehensible twitter..

    BUT…
    The PURPOSE for which it was intended is served perfectly…. It IS somewhat complex….

    LOL
    If you want simple, read BU or Barbados Today….

    Bushie is not here to bring you understanding or comfort …. else he would have been given a spoon and a blanket … not a stinking whacker….
    LOL
    ha ha ha

    @ WW&C
    “Trouble” is Bushie’s second name…

    You stay away from the bible …and stick with your broom
    Bushie is just fine…. (understatement of the year…) 🙂

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  • peterlawrencethompson

    While I have some compassion for those who need the bible or any other a book of fairy tales to get them through the difficult parts of existence, it is worth remembering that the text that most revere and take as authoritative (the King James Version) was the product of the deeply White supremacist ideology that enslaved our ancestors. While it is true that Wilberforce, Buxton et al also used the bible to make some modest corrective adjustments to this crime against humanity, but I have no confidence in a document that tells me “be obedient to them that are your masters according to the flesh, with fear and trembling.”

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  • peterlawrencethompson

    It is, of course, a gross simplification to tar all Christians with the same brush. The Anglican Church and the Moravian Church were firmly on the side of the plantocracy; the Quakers and the Methodists were much less guilty.

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  • It is said that a sucker is born every minute.Last year a video was making the rounds of a pastor of a northern caribbean church actually convincing about 15 grown women that if they wanted to get married they must all knell naked in the foreshore on the sand facing the ocean.The women were all in that posture with all appurtenances hanging down and out.The pastor was moving from one posterior to the other touching the bum and placing his hand on the honey as he exhorted what Errol Barrow called some unintelligible mumbo jumbo,and which these brainwashed women were sold on to satisfy their then unfulfilled life.It is moments like that which defy common sense and cause one to wonder at the ignorance of some human beings especially adults.

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  • @Bush Tea

    Why do we focus disproportionately on enforcement? There is a relationship between the quality of decisions we make how we nurture our people AND enforcement.

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  • @ David
    Who is focusing on enforcement?
    That principle of ‘an eye for an eye’ and of ‘do unto others…’ has nothing at all to do with enforcement. It is simply a spiritual societal standard that establishes some basic inter-relational customs in a society.

    It speaks authoritatively about the sanctity of life (thou shall not kill) and about physical assault. Can you think of a simpler, and more effective way to say that “human life MUST be respected in the society”?

    A society that develops with such values placed on human life tends NOT to have to fight with issues of ‘enforcement’ …. just like parents who set, and maintain high standards of discipline for their children tend NOT to have issues of police ‘enforcement’ on these children when they grow up.

    Honestly, Bushie is tired of arguing with those who seem to be contemplating a society in which we fail to set high value on human life …and then we complain about the ineffectiveness of ‘hanging’ when some citizens treat the lives of others with scant respect.

    These are the same people who would NEVER enforce discipline and rules on a 6 -year-old (because it is cruel) but who then complain when the police have to shoot them down in the streets at 18.

    The nature of folly is such that the the victim is unaware that they unaware and are therefore beyond help…

    @ PLT
    Boss, if you think that the validity, or otherwise, of the bible is tied to its use by racists to exploit blacks …then you are so far off course – as to be in danger of needing a passport…

    It would be better to just say that you ‘do not accept the bible….’ (in actuality, you just CANNOT UNDERSTAND It.)

    No doubt your lack of acceptance will change everything…. now that the “Being who created everything that our senses can experience” knows of your critical rejection….
    LOL
    whaloss!!
    Bushie does talk some shiite yuh!!!

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  • @Bushie

    The chink in your view is that the people you want to discipline in an extreme way were produced by the very society because of a dysfunctional system. Should we therefore not find the wherewithal to assume a ‘societal urgency’?

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  • I do not support the death penalty but believe that murderers should be made to support themselves till they die.

    They should be made to grow 95% of the food they eat.

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  • @ Hants
    They should be made to grow 95% of the food they eat.
    ++++++++++++++++++++++++++++++++++++++++++++
    So the penalty for murder should be that the murderer has to support himself…?
    Steupsss… that is the penalty for living as a man.
    You are MUCH too comfortable in albino-land boss…

    @ David
    Who does Bushie want to ‘discipline in an extreme way’? … read and come again…
    Where there is no vision, the people will perish.

    It is a VISIONARY stance by a society that murder WILL NOT BE TOLERATED IN THAT SOCIETY…. on the pain of death.

    To ‘discipline’ is to’ make a disciple of’.
    What is ‘extreme discipline’? …taking an ‘extreme’ view of the value of human life?

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  • peterlawrencethompson

    @ Bushie

    I do so enjoy it when you single me out for your whacker… Indeed the validity, or otherwise, of anything is tied to its use, bible not excepted.

    It is not without irony that Matthew 7:20 comes to mind: “by their fruits ye shall know them” 😉

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  • peterlawrencethompson

    Don’t get me wrong Bushie… some have used the bible to help accomplish tremendous good as well, it’s just not for me

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  • @Bush Tea,

    To be pellucid. They should be made to grow 95% of the food they eat….

    While imprisoned at Dodds.

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  • Bush Tea

    What should (also) NOT be tolerated is parental and wider societal delinquency.

    Like

  • peterlawrencethompson

    Or as you put it above Bushie “the proof of the pudding is in the eating”

    Like

  • @ David,

    When it comes to parents there are good, bad and variations in between.

    The behaviour of parents has gotten worse over the years.

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  • “In a small county in rural Tennessee, inmates were offered 30 days off their sentences in exchange for a vasectomy or a long-acting birth control implant. County officials say it was a tool in the fight against opiate abuse – opponents call it eugenics.”

    Are young people going to be given an opportunity to escape prison by taking birth control? How about HPV? The pill was tested on Puerto Ricans. What next?

    Like

  • If you folks just want to defend established positions, then we can agree to disagree and move on…. no doubt we will find other opportunities to cuss each other…. so no great loss there..
    But Bushie is at a ‘great loss’ to follow wunna arguments….

    Firstly..
    PLT, who said… “Indeed the validity, or otherwise, of anything is tied to its use, bible not excepted.”

    This is a completely illogical statement…. from any angle.
    ‘Validity’ has nothing to do with ‘use’.
    Indeed, whether or not the Bible is the ‘valid’ word of BBE is completely independent of how some white people use it to achieve their albino-centric ends. Either it IS the word of God … or it is not…. this is a purely epistemological issue…. not one determined by popular acclaim, by how much ‘good’ or ‘evil’ it was used to achieve …or by any eating of any pudding…

    @ Hants
    Bushie is talking about NATIONAL LEADERSHIP VISION.
    The question is….
    Do you want to live in a country in which an innocent human life is valued at ‘incarceration in Dodds’ … even if the culprit has to do some work in order to feed himself?
    …or in a country where the value of innocent human life is so precious, that it is accorded the HIGHEST POSSIBLE VALUE applicable?

    This is NOTHING TO DO WITH punishment, discipline, reprisals, revenge etc… just VISION.

    The trick here is that PREVENTION is much more effective than CURE.
    So by having a strong VISION about the value of human life …. and by disciplining our citizens to become converts to such VISION…. there becomes little need to be seeking cures such as revenge, punishment, hanging etc.

    Parents who have the vision to proactively discipline their young children to study hard, to refuse temptations, and to concentrate on the future, SELDOM are the ones having issues with rehabilitative support, punishment issues, state welfare, or police interventions.

    The appropriate maxim here is about ‘a stitch in time…(when it does not seem to be needed)’ not the one about eating pudding… 🙂

    The ‘pudding thing’ was used by Bushie to say that what we are presently ‘eating’ should tell us that our ‘vision’ is flawed somewhere back in the recipe ….

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  • peterlawrencethompson

    Yes Bush Tea, “Either it IS the word of God … or it is not…. this is a purely epistemological issue…” For an epistemology based on revelation this is a consistent statement; it is thus because god told me so.

    However my epistemology is based on evidence and logic, from which perspective it makes no sense whatsoever.

    Like

  • You constantly make its clear that yours is not an education based on the sciences … so Bushie will forgive you.

    Any kind of look around you – with understanding – will reveal the epistemology of the existence of some kind of super-human intelligence…. looking in any area that you may choose…

    It REALLY takes a VERY special kind of person to look closely at the complexities of Nature – EVEN IN THE SIMPLEST AREAS OF LIFE – and to conclude that there is no God.

    But we know that such persons DO exist…..
    In fact they dominate.
    And their world is headed to Hell in a dung-basket….

    Like

  • Bushie

    We do not recognize your White god, and never will.

    For all the reasons stated over time.

    The problem is with you

    For you can’t connect all the evil in this world to albinocentrism

    And at the same time continue to worship the evil of a White god at your centre.

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  • fortyacresandamule

    We live in a western society today that is soft and gentle on crime and punishment. All in the name of progressiveness. Murderers nowadays seemed to have more rights and special interests lobbying on their behalf than victims. This part of the world is so screwed up, that, it is not unreasonable to foresee that in the next decade the progressive warriors next mission would be to abolish the penal system entirely.

    Like

  • @ Pacha
    It would seem that you are the victim of the misconception that God is ‘white’…

    Bushie suffers no such delusion…
    God made man ‘in his own image’ – from dirt…. and in Africa….

    It is a bit surprising that YOU could be so indoctrinated with the folly that God is somehow ‘white’, that you would ascribe such erroneous thinking to Bushie…

    After all…um is the bushman’s step-dad we talking ’bout Skippa…
    LOL

    @ FortyAcres&1Mule
    Our society is soft on crime because the Spirits that are running things in this society are the same ones that are the original architects of crime…
    It was predicted that a time would come when everything would be inverted… when evil will seem like good, …and good, like evil.
    We (our societies) have CHOSEN the albino-centric way that empowers these spirits…

    Welcome to the ‘future’ boss….

    …and don’t place too many bets on those ‘decades’ in the future either…
    It was ALSO predicted that ‘unless those days were shortened, No fleet would be left alive… in short, the brass bowls would exterminate all life off the Earth….’
    How far is that day…?

    Like

  • Florida is about to execute another man by lethal injection. Bet anything it is a black man.

    Like

  • fortyacresandamule

    @Bushie. Boss , right on point. The whole system is upside down. Somtimes I feel like I am living in an alternative universe. Moral relativity and lack of responsibility is the narrative en vogue now.

    @Hal. Good for Florida. One less humanoid the world could do without. And I could careless if he is black, purple, green or white.

    Like

  • Bushie

    You tell us so all the time.

    But if it quacks like a duck and so walks

    It must be a White god.

    In short, your every word is imbued with all the trappings of the White’s people’s

    But for Pacha and our household, we will never bow down to the god of our enemy, or his made man, who continues, in his wicked name to wreck havoc on all people of colour in these worlds. And to the worlds themselves.

    Like

  • @ Pacha
    But if it quacks like a duck and so walks
    It must be a White god
    +++++++++++++++++++
    You are mixing your metaphors …. unsuccessfully.

    If ‘it’ creates man in his own image ….
    and…
    .. if that man is black
    .. is placed in Africa
    .. is a spiritual being by nature
    …is community centric by nature, tending to the ‘su su’ and cooperative.

    THEN ‘it’ CANNOT be a white albino-centric being…..

    Such a being would have created someone of some outlandish colour (orange?)
    Placed them somewhere where they could hide from the full power of the sun
    Given them the natural instinct to accumulate money
    and the albino-centric nature to grab everything possible from others for his own

    A ‘White’ god would have created Donald Trump…… not a black Adam.

    Like

  • ANOTHER BLACK BAJAN KILLED BY GUN

    MURDER NO. 23

    Barbados has now surpassed the number of murders which took place in 2016 as a Christ Church man is the 23rd murder victim for the year.

    http://www.nationnews.com/nationnews/news/99880/murder-23

    Like

  • @Hants

    All is well in Barbados don’t worry.

    Like

  • Fortyacres,

    That is where we part company. Historical context is very important, although I recognise that our popular culture coincides very much with that of our oppressors, even if we sometimes do not realise it.

    Like

  • Talking Loud Saying Nothing

    The Guardian newspaper has reported on the assassination of Rhianna’s cousin in Barbados.
    theguardian.com/music/2017/dec/27/rihanna-calls-for-end-to-gun-violence-barbados-boxing-day

    Like

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