Getting Away With Murder : Cholmondeley Style

Also published recently in Kumekucha: Chris is back

Thomas Cholmondeley, 38 year old divorced father of two, is escorted in the high court by police during his murder trial in Nairobi, September 16, 2008.

The trial of Thomas Patrick Gilbert Cholmondeley for the May 2006 murder of Gilgil stone mason Robert Njoya at the expansive Soysambu ranch in Naivasha is now approaching its end and a verdict is expected by the end of October.

Ranch owner Tom Cholmondeley allegedly shot ‘poacher’ Njoya in the buttocks as he was running away and the rifle shot reportedly caused a massive pelvic wound that resulted to the death of Njoya.

The unenviable task of passing the verdict will fall on the shoulders of 53 year old Honourable Mister Justice Muga Apondi. I have no reason to doubt the abilities of Justice Apondi – who is no stranger to controversial and sensitive judgements, the recent having been ordering a freeze on the bank accounts of runaway Rwandese fugitive Felicien Kabuga – but as a Kenyan, this case arouses my interest just as it would any stuggling-to-survive black landless man.

Granted, the judgement will also be viewed as an acid test to the ability of the Kenyan judiciary to enforce the law equally and fairly, especially when it involves the mighty and powerful of this country.

Tom Cholmondeley is the great grandson of the 3rd Baron Delamere who was among leading British colonial farmers who settled and established large farms across Kenya's white highlands. The Delamere farm is one of the largest and well organised mixed farms and wildlife sanctuary in the Rift Valley province. Tom will become the 6th Baron Delamere upon the demise of his father.

Going by the final submissions of defence lawyer Fred Ojiambo, it appears Tom Cholmondleley is seeking acquittal on the basis of the prosecution’s failure to directly link him with the bullet that killed Njoya. This is probably in line with Tom’s own testimony last July in which he expressly denied ever having deliberately shot Njoya and implying that that the fatal shot was most probably fired by his friend, Carl “Flash” Tundo with whom he had been strolling at a remote corner of the farm where Tundo, a local rally driver, wanted to lease land and build a house when they stumbled on a group of poachers who set their dogs on them. In keeping with Kenya Wildlife Service regulations, Tom took aim at the dogs with a Winchester .303 hunting rifle, killing two. He then claimed that Mr Tundo most probably fired the fatal shot with his pistol. Tundo was initially arrested by police together with Tom but was released a few days later after recording statements. It is unclear what forensic investigation reports were filed in the court.

In subsequent police statements, Tom allegedly confessed to having shot at some poachers on his expansive 55 acre ranch that stretches from Naivasha to Gilgil town. Not surprisingly, in their submissions on Tuesday, lead defence lawyer Ojiambo dismissed these confessions as inadmissible in a court of law. Ojiambo added that there was no eye-witness account of the shooting and also no one actually saw the deceased being shot by anyone.

Meanwhile the prosecution was today expected to prove that Tom deliberately shot at Njoya with an intention to kill and that contrary to assertions that Njoya was a poacher, no civilian is required to apply to Kenya Wildlife Service, let alone the Soysambu Ranch management, for permits to hunt the more than 10,000 different species of small game that roam the ranch. In any case, prosecution emphatically adds, the wild animals are lawful properties of the state, under the care and supervision of KWS, and not Tom Cholmondeley!

Predictably, drums of war can be heard and emotions are already escalating in the Naivasha area in anticipation of a verdict in favour of Tom, who incidentally was also in 2005 acquitted for lack of evidence in yet another murder trial of KWS warden Samson Ole Sisina. Both killings sparked outrage countrywide, with Naivasha residents holding demonstrations around the farm forcing police to deploy 24 hour patrols. One politician called for Tom to be lynched at sight! His acquittal forced police to physically restrain hundreds of war-cry chanting Masaai morans from invading the Delamere estate.

The highly controversial Sisina acquittal had its own high profile casualties. Philip Murgor, the then Director of Public Prosecutions, was immediately sacked by President Kibaki for acting unprofessionally after he dropped Tom’s murder charge, but even then, the accused was never brought back to stand trial until he allegedly killed another man hardly one year later. Although he confessed shooting Ole Sisina, he pleaded self defence claiming he thought he was confronting armed robbers.

The murder of Robert Njoya aside, the Delamere Estate, also known as the Soysambu Ranch, is the envy of many politicians with interests in venturing or expanding into lucrative flower farming and general horticulture, while on the other hand, a rapidly growing population has led to scarcity of land and inevitably bred resentment among poor landless Kenyans who are having to live as squatters in their own country.

Without wanting to be seen to be taking sides or being accused of contempt of court, me thinks this is one of those ‘open and shut’ cases which fortunately or unfortunately has dragged on and on because we all have to respect the rule of law.

Kazi kwako Justice Apondi.

Kriegler Reservations

THE KENYANS FOR PEACE WITH TRUTH AND JUSTICE

THE NATIONAL CIVIL SOCIETY CONGRESS

PRESS RELEASE

THE PROGRESS OF THE MEDIATION PROCESS AND THE POST-ELECTORAL COMMISSIONS OF INQUIRY

“The Kriegler Commission must faithfully fulfil its mandate”

Nairobi, September 16, 2008 : Kenyans await the imminent release of the Independent Review of the Elections Commission (IREC) report to His Excellency the President as well as to His Excellency Kofi Annan, the chair of the African Panel of Eminent African Personalities that crafted the National Accord.

However, that wait is tinged with reservations. Reservations informed by the long and disappointing experiences with commissions of inquiry which never fulfilled their mandates or whose recommendations were never implemented. In addition the conducting of the inquiry and the public pronouncements of its chairman, Justice Johann Kriegler have fuelled public scepticism about the likely quality and impact of findings and recommendations emerging from this Commission of Inquiry. In all fairness, Kenyans must wait and hear what Justice Kriegler and his colleagues have to say. But we wait in the consciousness of the historical significance of this report and of the heavy negative consequences that could attend an insufficient fulfilment of IREC’s mandate.

The 2007 General Election in Kenya was, arguably, the most closely contested ever. The consequences of that election nearly tore the country apart.

Many Kenyans quickly came together upon the eruption of violence to seek peace. One such group stressed that achieving peace alone would not be sustainable without the telling of Truth and the search for Justice. This is how a group of civil society organizations and individuals evolved into the Kenyans for Peace with Truth and Justice (KPTJ). We are joined on our concerns by the National Civil Society Congress (NCSC).

We still do seek truth, which we believe will only return Kenya to durable stability and peace if it is told and known. Electoral truth, truth on the processes, voting and tallying truth, as well as the truth of the roles played by individuals as well as institutions must be told.

KPTJ and NCSC also seek justice for the people of Kenya. Electoral justice will, in our view, be the foundation of growth in democracy and freedom. This justice must include the final determination of what exactly happened to the ballot and who may have won the election insofar as this can credibly be ascertained.

We, too, seek justice for the people that were violently deprived of their lives, livelihoods and property. We hope that the Internally Displaced Persons shall have their share of justice through the report of the Commission on Post-Election Violence (CIPEV). We deplore the continuing suffering of the IDPs and condemn the inadequate attention which is being paid to finding speedy and sustainable resolution of their plight.

In order to heal itself, Kenya accepted a grand coalition government, which resulted from the Kofi Annan led mediation process. In addition, the abovementioned commissions, IREC and CIPEV, were set up to deal with outstanding issues.

The mandate of the Independent Review Commission includes the investigation of ALL aspects of the 2007 presidential elections and the making of findings and recommendations to improve the electoral process.

We do expect that IREC shall provide a faithful report that will, among other things, do the following:

• Substantively and conclusively note the accountability function of the Electoral Commission of Kenya. This will include clear findings on what the ECK did wrong, who did wrong, what ECK failed to do right, what it could have done better and its responsibility, and that of individual officials, for the aftermath of the elections.
• The Commission should clearly identify the culpable parties for the electoral fiasco that nearly brought the country to its knees. This should include specific findings on individuals, political parties, candidates, state agencies, security agencies and any other parties. We expect that IREC will indeed proffer an answer as to what exactly went wrong with the elections and who had the greatest responsibility for the disaster that happened to Kenya. We seriously expect that the Independent Review Commission will not pass the buck but precisely locate it.
• The IREC will have to be acutely aware that, in the event Kenyans feel that the commission has not fully and effectively discharged its mandate, it will have endorsed impunity and diminished faith in elections as an essential tool for democracy. This will risk being considered a perpetuation of the betrayal that led to the loss of lives and property following the elections.

Whereas we are hopeful that the IREC will acquit itself in respect to the foregoing, we are aware that the commission faces some key challenges. These include:

• The Commission’s apparent narrow interpretation of its mandate to exclude the possibility of credibly identifying who may have won the presidential election. We have stressed in all our public statements that this may be extremely difficult, if not impossible, if the records have been extensively manipulated. However any professional and conscientious forensic audit of the documentation should at least provide guidance on what really happened and who was culpable. Judge Kriegler’s apparent public fudging on this mandate is in contrast to the Kenya National Dialogue and Reconciliation agreement, which said that the IREC “would be mandated to investigate all aspects of the 2007 General Election”. One of IREC’s terms of reference enjoin it to “investigate vote counting and tallying with special attention to the presidential poll to assess the integrity of the results”.
• The Commission’s highly questionable definition of the primary stakeholders of the inquiry process to be political parties, the ECK and the government.
• Since the IREC’s investigation was based on possible mischief by the political actors and the ECK their above-mentioned privileging by the commission and the reluctance to allow civil society to play a more active role in the proceedings of the inquiry was regrettable since IREC’s independence could come into question, and thus reduce the credibility of its report.
• In contrast, and without prejudice as to its eventual findings and recommendations, the Commission of Inquiry into Post-Election Violence (CIPEV) under Justice Waki has worked well with civil society. We believe that this has had a positive impact on some of the testimony received and the outreach that CIPEV could attain.

In conclusion, the KPTJ and NCSC fully expect the Commission to be faithful and forthright to its mandate and to the people of Kenya so as to safeguard democracy and the fidelity of the electoral system and responsibly use the considerable public resources allocated to it.

We also urge the President to immediately publish the report to its true principals, the Kenyan people, so that Kenyans can evaluate it, respond, and take the necessary steps to heal and reconstruct their nation.

The same demand will be made over the CIPEV headed by Justice Waki, which is also soon completing its report.

Signed:

Gladwell Otieno

Kenyans for Peace with Truth and Justice

Njeri Kabeberi

National Civil Society Congress