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CHIEF JUSTICE EVAN GICHERU AND THE OUKO MURDER INQUIRY

By Martin Minns

Chief Justice Evan Gicheru

There have rightly been many tributes paid to former Chief Justice Evan Gicheru who died aged 79 on Christmas Day and whose funeral took place yesterday at St Francis church, Karen. Yet in among the justified eulogies and the tributes paid to him in the media an old untruth was yet again re-stated as fact. When talking or writing about a man whose life was dedicated to justice and ascertaining the truth, it surely behooves us to record the facts, not trade in fiction.

In a long and distinguished career which saw Gicheru appointed as a Judge of the High Court in 1982, a Judge of the Court of Appeal in 1988 and ultimately Chief Justice of the Republic of Kenya in 2003 (he retired in 2011) there were obviously many highlights, one of which was his chairing in 1990-1991 of the Commission of Inquiry into the murder of Dr Robert Ouko, Kenya’s Minister of Foreign Affairs murdered near his Koru farmhouse on February 13 1990.

PUBLIC INQUIRY INTO DR ROBERT OUKO’S MURDER

One reporter at least, stated the Gicheru Inquiry, as it of course became known, was closed down no sooner than it was set up whereas in fact it ran from 2 October,1990 through to the 26 November 1991, 246 days during which it heard testimony from 172 witnesses.

The story that the Gicheru Inquiry was hardly allowed to sit however, is not the ‘untruth’ to which I refer. More

Dr Robert Ouko speaking at the Kenyan Embassy, Washington D.C. January 1990

columnists and reporters, and particularly the often unnamed scribes contributing to postings on the Internet, regurgitated the old story that the Inquiry was abruptly terminated just before the truth was about to be revealed and/or to protect the guilty. This was not so.

For over 11 months the Inquiry’s proceedings were extensively reported, pretty much verbatim, in the daily papers but in truth, as it ‘dragged on’, to quote a telex from the US Embassy to the State Department in Washington D.C., there were few earth shattering revelations.

BRITISH DETECTIVE JOHN TROON

On 6 November 1991, former Detective Superintendent John Troon, the New Scotland Yard detective invited in to Kenya by President Moi to investigate Ouko’s murder began giving testimony to the Public Inquiry (Troon was by now retired from New Scotland Yard). There, over a period of several days, he read out his entire Final Report which was duly recorded word-for-word in the newspapers.

New Scotland Yard Detective John Troon

John Troon was the media’s “star performer” during the Gicheru hearings but the Inquiry ultimately exposed serious flaws both in his original investigation and his Final Report.

But Troon was now under rigorous cross-examination which exposed the ‘circumstantial’, ‘tenuous’ and ‘hearsay’ nature of the testimony on which he based his report, as even Troon admitted.

He also admitted that one of his principle witnesses, Dr Ouko’s brother Barrack Mbajah, had not been entirely honest with him and that there was a row going on between them up until the minister’s death.

Troon admitted too that he had made no inquiries to the US authorities over the Washington trip allegations (based on the hearsay testimony of Barrak Mbajah that Ouko had rowed with Biwott during a presidential visit to Washington D.C. two weeks before he was murdered).

He reluctantly accepted that his Kisumu Molasses corruption theory was based “principally” on the testimony of Briner-Mattern and Domenico Airaghi, and documents that they alone had produced and admitted that he made no inquiries of the Swiss or Italian authorities to check into the background of Airaghi, Briner-Mattern or their company BAK, nor did he read the Kenyan Government’s file on the Molasses project.

Troon was questioned whether he had asked to see the government’s Molasses file when he interviewed Dalmas Otieno, the Minister for Industry.

ISHAN KAPILA CROSS EXAMINATION

Lawyer Ishan Kapila asked,  “Did you make arrangements for the provision of this file to you after that meeting?”

Troon replied, “Not that I am aware of my Lords, no”.

Troon did not personally interview Domenico Airaghi. Troon admitted at the Public Inquiry that he did not read Airaghi’s diaries because they were in Italian.

Troon made no inquires with the Italian or Swiss authorities; and he made no inquiries into the background of BAK, Briner-Mattern or Domenico Airaghi.

It was Justice Evans Gicheru who posed the question: what should Troon have done?

“What would you have expected him to do Mr. Kapila?” asked Gicheru.

Ishan Kapila struck back: “I would have expected him my lords to first check on its registered office and then check on what its share capital was, to then check its reputation in Italy and Switzerland and in Africa, to check which projects they have carried out anywhere in the world. There are a number of things that have to be done my Lords, I am not a policeman but I would think you cannot do without it.”

But Troon did none of these things.

Troon’s case was being torn apart, and for all who had eyes to see, his discomfort reported in the daily newspapers.

On the 21st November Troon suddenly announced that he had to fly to London.  He never returned.

INTERNATIONAL PRESSURE

Events outside Kenya now put President Moi under more pressure to be seen to take action.

On the 26th November international donors reduced the flow of aid to Kenya, frustrated by the slow pace of reform toward multi-party democracy and no doubt influenced by the controversy over Dr Ouko’s murder.

President Moi faced a financial crisis but he acted quickly.

That morning, the morning of the 26th, just as the powerful Permanent Secretary in the Ministry of Internal Affairs Hezekiah Oyugi, a man mentioned ‘adversely’ in Troon’s report,  was about to give his testimony, Moi announced that the Public Inquiry had been dissolved.

KENYA POLICE ‘FURTHER INVESTIGATIONS’

Moi now appointed a team of Kenyan police officers to conduct ‘Further investigations’ into the death of Dr Robert Ouko ‘as recommended by the Troon report’.

Later the same day Oyugi, former Energy Minister Nicholas Biwott and the DC for Nakuru, Jonah Anguka, were arrested. Also arrested were Ouko’s ‘youth campaigner’ and friend’ James Onyango K’Oyoo; Administrative Police Inspector Ajuoga; Ouko’s maid Selina Were; his lawyer George Oraro; Paul Gondi, a banker; Ouko Reru, Dr Ouko’s cousin and campaign manager; and Koru farm worker Philip Rodi.

GICHERU INQUIRY COMES TO AN END

Observers were indeed taken aback by the sudden termination of the Gicheru Inquiry’s proceedings.

A telex from the British High Commission to the Foreign and Commonwealth Office in London expressed both their surprise and alarm.

‘We have just heard that [the] Ouko Commission has been summarily suspended. This was entirely unexpected. There has always been a central flaw in the enquiry’s terms of reference, in that the more successful it turned out to be, the more likely it was that it would need to be suspended in order not to prejudice criminal prosecutions. It could be that moment has come…’

 The British High Commission telex also put forward another version of the story ‘doing the rounds’, ‘which suggests that the suspension was in order to prevent Oyugi testifying later this week and quote telling all’.

PRESIDENT MOI’S LEGAL ADVICE

However, within a week the British diplomats had their minds put at rest:

‘Initial doubts about the motives behind the winding up of the Ouko Commission have disappeared with the publication in the official gazette of a statement signed by the President directing the Commissioners to present a report by 31 January and instructing the Commissioner of Police to speed up further investigations with a view to finding sufficient evidence to convict persons involved in Ouko’s murder… It is quite clear the arrests have taken place in the context’.

Other diplomatic correspondence from the time shows that President Moi, having had a week to read Troon’s ‘Final Report’, was advised that if the Gicheru Inquiry were to continue, its proceedings could jeopardise a subsequent trial into Dr Robert Ouko’s murder: the matter had to be handed over to the Kenyan police.

NICHOLAS BIWOTT NOT INTERVIEWED – NO ‘DAY IN COURT’

Nicholas Biwott

As for the story that Oyugi or Biwott were either protected from cross-examination, or prevented from ‘telling all’ this too is unfounded.

All those arrested apart from DC Jonah Anguka (who was tried for but acquitted of Ouko’s murder) were released following questioning by the police.

Oyugi and Biwott were held and questioned for fourteen days but no evidence was found against them.

At least Oyugi was also questioned by the British detective Troon.  Biwott was never interviewed by the Scotland Yard detective even though he was given the opportunity to do so and even though Biwott’s name was ‘adversely mentioned’ in Troon’s report.

A telex from the British High Commission to the Foreign and Commonwealth office, dated 6 June, 1990, stated that, ‘Troon has NOT/NOT interviewed Biwott despite an invitation to do so’.

 Troon also admitted to the Gisheru Inquiry that he had made one attempt to meet Biwott (when it transpired the latter was in Tehran) and made no attempt to interview him thereafter.

Former Energy Minister Nicholas Biwott was therefore never questioned by the Scotland Yard detectives; he was denied the opportunity to give testimony and face cross-examination to the Gicheru Inquiry; and subsequently he was stopped from giving his testimony to the Parliamentary Select Committee ‘investigation’ (2004-05), the Committee’s hearings called to an abrupt halt by its chairman Gor Sunguh as Biwott tried to speak.

The 1990-1991 Public Inquiry into Dr Robert Ouko’s murder under the Justice Evan Gicheru was brought to an end as a result of legal advice given to President Moi, possibly also influenced by international events and the floundering testimony under cross-examination of New Scotland Yard’s former Detective Superintendent John Troon in the last days of the Gicheru Inquiry.

Let the record show…

 

Martin Minns produced the six part documentary for Citizen TV, ‘Murder at Got Alila: Who Killed Dr Robert Ouko and Why?’, now available on Youtube.

Who Killed Dr Robert Ouko and Why?

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