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THE SWORD OF JUSTICE IS MIGHTIER THAN THE POISONED PEN

Bush Moi and other delegates at the Washington Prayer Breakfast

Bush Moi and other delegates at the Washington Prayer Breakfast

The statue of ‘Justice’ can be seen in the precincts of law courts throughout the free world. There is one standing in a fountain outside the High Court in Nairobi. The style may change but the image is fundamentally the same wherever she is found – the figure of a woman, blindfolded, holding a set of scales in one hand and a sword in the other. ‘Justice’ listens to the facts, she weighs them up objectively without prejudice or bias, and if need be she wields her sword of justice.

A Mr George Kegoro appears to believe that the pen is not only mightier than the sword (with which we would agree) but also mightier than ‘the sword of justice’ (which concerns us). The Forum would counsel him, however, to gaze upon the statue of ‘Justice’ and reflect, as should we all.

George Kegoro is the executive director of the International Commission of Jurists in Kenya, a regular contributor to The Nairobi Law Monthly (an excellent magazine The Forum recommends to its readers) and on Sunday last a contributor to The Nation on Sunday. It is to this latest missive of Mr Kegoro’s that The Forum draws your attention, for there are lessons to be learnt from it, hopefully for George Kegoro but certainly, again, for us all.

In a comment article under the headline ‘Visram out to prove a point in race for CJ position’, Kegoro called into question Appeal Judge Alnashir Visram’s bid to become the next Chief Justice of Kenya stating that although as an ‘Appellate judge [he] has a good legal mind and a number of important cases under his belt… two of his rulings portray him as intolerant of freedom of speech and cast him in a bad light’.

One of the cases to which Kegoro was referring and which forms the basis for the substantive part of his article was the award of Sh30 million in libel damages, the highest ever awarded in a Kenyan court, by Judge Visram to former Government Minister Nicholas Biwott in 2000.

Visram’s judgment resulted from Biwott suing the authors of a book entitled ‘Dr Iain West’s Casebook’ written by a British tabloid newspaper journalist Chester Stern in collaboration it would seem with Dr West, a British Forensic Pathologist who was part of Scotland Yard’s investigation in 1990, which ‘purported to be a true account of Dr West’s official work investigating the Ouko murder, in which he alleged Mr Biwott’s involvement in the murder’. Biwott also sued the book’s UK publishers and two bookshops in Nairobi (for distributing it). The Kenyan defendants settled out of court. Those in the UK, although they had initially said they would “vigorously defend” the suit, in the end choose not respond to a summons.

Regular readers of The Forum will know that we have commented before on the misinformation and unprofessional reporting of Dr Ouko’s murder and the investigations into it (see, ‘Bring me the head of Dr Robert Ouko’, ‘Lee Harvey Oswald did not shoot Dr Robert Ouko – Official’, ‘The Facts of Dr Ouko’s murder must be reported’ and ‘Time to let truth get in the way of a good story?’.

The Forum has read the relevant chapter in Chester Stern’s book, so let’s just take a moment or two to examine it and then the arguments arising from it, not least Judge Visram’s judgment and George Kegoro’s take on it.

Stern stated that during the Presidential ‘Prayer breakfast’ trip to Washington in January/February 1990 that concluded a week before Dr Robert Ouko was murdered, ‘there was an angry argument between Ouko and the Kenyan energy minister, Nicholas Biwott’.

Yet we know the testimony to this effect came from Dr Ouko’s brother Barrack Mbajah, who was not on the Washington trip, an accusation made, according to Mbajah, as a result of an alleged conversation with Malacki Oddenyo, then the Director of Information in the Ministry of Foreign Affairs, who also was not on the Washington trip and who denied ever suggesting there had been a row.

No one on the Washington trip said there had been a row between Ouko and Biwott and all the evidence is that there was no row. They traveled on the same flights together, sitting next to each other on the way to Washington, shared hotels and official cars. The British Scotland Yard detective John Troon brought in to investigate the murder also handed over Dr Ouko’s diary to the 1990 Ouko Commissionand in which there was an entry in Ouko’s own hand dated February 2nd, 1990, which read, ‘Hon. Biwott told me Ken [Dr Ouko’s son] is to be recruited to the Ministry of Energy, even as a student’.

PRESIDENT BUSH DID NOT MEET WITH ROBERT OUKO BUT DID MEET MOI…

Stern stated that Ouko ‘had been met with open arms by President Bush’ and ‘Moi and others had been treated with cold disdain’, making Ouko’s position ‘precarious’, the reason often given for the ‘row’ theory. But we now know, and have done since at the latest 2003/04 (when the information was made available for the Sunguh Commission) that no meeting between President Bush and Dr Ouko took place. Bush’s official diary was released by the Bush Presidential Library and make’s no mention of it. The archivist at the library confirmed that it was an accurate record, and Bush’s lawyer confirmed that the meeting did not happen. President Bush, however, did meet with Moi, a fact to which photographs taken at the time attest and which therefore tells a very different story.

As a result of the ‘row’ wrote Stern, Ouko had been sent home on a different flight, his passport seized at Narobi, had sought a meeting with the President [Moi], but ‘instead of a reconciliation found himself banished to one of his three homes’. We now know, and many have known since 1990, that Dr Ouko landed on the same flight in Nairobi as President Moi – there are many photographs in Nairobi archives that prove this and hundreds witnessed his arrival at Jomo Kenyatta Airport; that his passport was not taken away – Ouko’s wife Christabel handed his passport to Scotland Yard and signed a statement to that effect; and Ouko did meet with President Moi at 9am on the morning after their return from Washington, introducing him to the Japanese Ambassador and Canadian High Commissioner in the presence of Permanent Secretary Bethuel Kiplagat.

Nor was Ouko banished. He traveled to his Koru farm with his driver and bodyguard and there numerous testimonies to Dr Ouko continuing his functions as Minister for Foreign Affairs and none that he did not do so. And he continued his preparations for his next official visit to The Gambia due to have taken place on February 14th.

There were other factual inaccuracies in Stern’s book. To give just two examples of very significant errors, he stated that Ouko had disappeared on February 12th, 1990, and that his body had been found ‘three days later’ by a ‘seventeen-year-old herdsboy’. Yet eye witness testimony that has never been disputed (including by Scotland Yard and the Kenyan Police) places Dr Ouko alive in the early hours of February 13th, 1990, and that the herdsboy Shikuku found his body at about 1pm on the same day. He reported finding the burning body to other villages but they did not inform the police, who found the body on the 16th February.

One other very significant fact should be taken into account when considering the discovery of Dr Ouko’s body on February 13th, 1990. That fact, according to Detective Superintendent John Troon of Scotland Yard, who led the Yard’s investigation, is this: Dr Ouko was shot where his body was found, or a few feet from the spot. How do we know? Because none other than Scotland Yard’s pathologist Dr Iain West, stated it to be so in Troon’s ‘Final report’, leading to Troon’s conclusion that there was, ‘no evidence to suggest that Dr Ouko had died at any other venue than the scene’.

So, Dr Robert Ouko was murdered on the morning of February 13th, 1990, and shot at the site where his body was found. He was not taken, and could not have been taken, to State House or anywhere else, murdered and his body returned to Got Alila Hill.

As for the accusation that Biwott was involved in attempted corruption over the Kisumu ‘Molasses Project’ and could have therefore been the subject of a ‘corruption report’ being written by Dr Ouko at the time of his murder (the publication of which might therefore have given Biwott a motive for killing Ouko), these theories too, and those from whom they originated, have been utterly discredited for years.

The testimony for the Molasses Project corruption theory came almost entirely from a Marianne Briner Mattern, who together with her business partner, a Domenico Airaghi, purported to run BAK, a company tendering to help re-start the Kisumu Molasses plant. Troon of Scotland Yard accepted their testimony because he said that they were ‘honest’ and ran a ‘reliable’ company. We now know that over the period they were dealing with the Kenyan government and later Troon’s investigation, Airgahi was on bail from a Milan court, convicted of fraud (in which he had used false documents to support his case), that the main witness in his defence was one Briner Mattern who the judge described as ‘unreliable’, and that BAK had not traded and was not finally incorporated as a company until February 13th, 1990, the day Dr Ouko was murdered.

As for the corruption allegation, which ran that Biwott and others had asked for kickbacks for one Italian company over another to win the contract for Molasses Project, the two companies concerned were proven to have both been introduced to the Kenyan government by Airgahi and to have been part of the same multinational group, so there was no question of paying a bribe to win a contract that the company had already won. Dr Ouko’s sister Dorothy Randiak, and Troon accepted this as fact under cross-examination at the 1991 inquiry.

The ‘corruption file’ that only Marianne Briner-Mattern suggested existed was never found and when asked by Sugnhu’s committee where her evidence for it was she said it had been taken out to sea by Tanzanian fishermen.

For further reading on the subject of Dr Ouko’s murder, and links to relevant documents, we recommend to readers (and George Kogoro) www.kenyaunsolved.com and www.kenyadocex.com (together with the Wiki page on Dr Robert Ouko but with the caveat that Wiki pages should be treated with caution).

Kegoro’s criticisms of Judge Visram and attack on Biwott included the charges that Visram had not taken into account ‘all the publicly known information about Mr Biwott which might have affected his standing’; that ‘Mr Biwott did not call a single witness to testify on his good standing as (sic) would have been injured by defamatory remarks’; that Biwott ‘had a well established reputation as a ruthless political operator’; that Visram ‘failed to address important facts surrounding the death of Dr Ouko; that Biwott ‘was regarded as one of the principal suspects in the Ouko murder’; and that, ‘The fact that the killer was (and still is) unknown today, should logically have meant that anybody, not excluding Mr Biwott, could have done it’. And that for these reasons, and several others, Judge Visram had made a mistake in awarding damages to Biwott and in the level of damages awarded.

George Kegoro should know that Biwott’s reputation aside from the question of whether he was, or was not involved in the murder of Dr Ouko, could not have been a consideration for Judge Visram. The action was uncontested, liability was clear and it rested on the serious accusation of murder (a capital offence) and unsubstantiated accusations of corruption, in Stern’s book.

As a trained lawyer Kegoro should also know that Biwott could not call witnesses because the law provides that he could only have done so if Stern had defended the case. And quite how Kogoro can confidently deduce that if he had have done he ‘would have been injured by defamatory remarks’ is beyond us. As for the charge that Biwott had a reputation as a ‘ruthless political operator’, so what? That doesn’t make him a ruthless killer, certainly not in a court of law.

And Kogoro’s amazing distorted logic that as the killer or killers of Dr Ouko are unknown, anybody could have done it, ‘not excluding Mr Biwott’, The Forum would point out that in 1990 George Kegoro was approximately 21 years old and could by his own logic be named as having possible involvement in Dr Ouko’s murder. Yet if he now read a book saying so, how would this eminent ‘jurist’ feel?

Kegoro is in effect implying that Judge Visram was heavily biased in favour of Nicholas Biwott. If this were the case, why then did the same Judge Visram award the leadership of KANU to Uhuru Kenyatta over Biwott in 2007? Judge Joyce Aluoch also ruled in Biwott’s favour in a libel action against The People newspaper. Was she therefore also unfit to the first Kenyan judge to be appointed to the International Criminal Court in The Hague?

The Forum has now read the full text of Judge Visram’s judgment in the case, a copy of which is available to readers so you can decide for yourself. But The Forum contends that far from being something that Visram should be castigated for it is, rather, a brilliant piece of work, superbly argued and fully supported by many case studies.

Judge Visram clearly set out his arguments for the compensatory and exemplary damages awarded. He stated that, ‘The libels perpetrated upon the plaintiff are grave, quite deliberate, and without regard to their truth, or recklessly without caring about their truth, for the sole purpose of gain notwithstanding the distress it might cause to the plaintiff. And this is what gives rise to “exemplary” damages’.

He concluded: ‘I believe that time is propitious to send a clear message to all those who libel others with impunity, and who get away with ridiculously small awards, that the Courts of law will no longer condone their mischief. No person should be allowed to sell another person’s reputation for profit where such a person has calculated that his profit in so doing will greatly outweigh the damages at risk’.

There are several excellent candidates for the post of Chief Justice of Kenya. Judge Alnashir Visram is one of them. George Kegoro’s poisoned pen was wielded recklessly and without taking due care of the truth. It should not be taken into account by a jury of Judge Visram’s peers in deciding whether or not he succeeds to the post of Chief Justice.

*Referred to in Raila Odinga’s autobiography ‘The Flame of Freedom’ as ‘Brenda Brimmer-Martens’ (book ‘written with Sarah Elderkin’)


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