November 26, 2021

Summary

The Judicial Commission of Inquiry was to be chaired by Mr Justice Gicheru, supported by Mr Justice Otieno Kwach and Mr Justice Akiwumi and was given ‘wide powers to enquire into such matters they think fit and to direct where and when their report shall be rendered’

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Gicheru Ouko Murder Inquiry 30 Years On (Part 1)

Gicheru Ouko Murder Inquiry 30 Years On (Part 1)

Mr Justice Evans Gicheru

30 years ago today, November 26, 1991, a public inquiry into the murder of Kenya’s Minister of Foreign Affairs, Dr Robert Ouko, headed by Justice Evans Gicheru, was abruptly brought to a halt by President Daniel arap Moi. Gicheru’s inquiry did not produce a report. There was talk at the time and to this day of a high-level cover up. What really happened during the 13 months the inquiry received testimony is far more revealing.

Now, with the aid of archive material, including ‘secret’ and ‘confidential’ diplomatic telexes from the time, the truth can be told.

Dr Robert Ouko’s Body

On the morning of February 13, 1990, Dr Robert Ouko was murdered some 2.8 kilometers from his farm house in Koru, Muhoroni district, Nyanza. He had been shot once in the head, his body set on fire, his right ankle had a double break of the lower and tibia and fibula and there was a three-inch bruise on his upper right arm.

Ouko’s body was initially found by a teenage herdsboy, Paul Shikuku, but although he informed the local Assistant Chief much later that day, the local authorities were not informed. It was to be three days later, Friday 16 February, before an official police search found Ouko’s remains.

[See also Murder at Got Alila – Who Killed Dr Robert Ouko and Why Episode 1]

President Moi Invites Scotland Yard to Investigate

Contrary to the way the story has been told over the years that it took several days of protests and political pressure to goad him to take action, President Moi took responded to the finding of Dr Ouko’s body immediately.

Over that weekend, via the Permanent Secretary in the Ministry of Foreign Affairs in Nairobi, Bethuel Kiplagat, and Kenya’s High Commissioner in London, Sally Kosgei, he invited the Metropolitan Police in New Scotland Yard, London, to send a team of detectives and a leading pathologist to investigate Ouko’s murder.

Thus it was that on the early morning of Wednesday 23rd Detective Superintendent John Troon from the Metropolitan Police’s Organised and International Crime Branch, accompanied by Detective Inspector Graham Dennis, Detective Sergeant David Sanderson and Dr Iain West, a Home Office Forensic Pathologist from Guys and St Thomas Hospitals, London, landed at Jomo Kenyatta International Airport.

Over the next three-and-a-half months Troon conducted the investigation into Ouko’s murder, completing his ‘Final Report’ on 28th August, 1990, and delivering it to Kenya’s Attorney General Mr Justice Muli in Nairobi on Monday 24th September.

The Gicheru Public Inquiry

Critics have, again, often suggested that President Moi prevaricated as to what to do with Troon’s report but the facts do not support this.

The earliest Moi could have received Troon’s Final Report was on September 24th, 1990, the day it was delivered to Justice Muli. The Report is over 109 pages long containing 254 paragraphs and would have taken Moi some time to read, let alone deliberate on it. Even so, just seven days after Troon had delivered his report President Moi announced the appointment of a Judicial Commission of Inquiry to ‘determine the circumstances pertaining to the death of Dr Robert Ouko’ and that the Commission was to ‘commence its work immediately’ [telex from the British High Commission to the Foreign and Commonwealth Office, October 2, 1990].

The Judicial Commission of Inquiry was to be chaired by Mr Justice Gicheru, supported by Mr Justice Otieno Kwach and Mr Justice Akiwumi and was given ‘wide powers to enquire into such matters they think fit and to direct where and when their report shall be rendered’ [telex from the British High Commission to the Foreign and Commonwealth Office, October 4th].

Gicheru Commission Compromised

However, even before it was formally established, or began hearing its first witness, there is evidence that the Gicheru Commission was compromised from the start.

On April 23rd, 1990, five months before the Commission was appointed, the British High Commissioner in Nairobi, Johnnie Johnson, sent a telex to a Commander R. Penrose at New Scotland Yard in which he reported on a meeting between Troon and Bethuel Kiplagat.

‘Kiplagat went on to say’, wrote Johnson, ‘that before the formal inquest there will be a meeting at which senior judges will review the Scotland Yard investigation, presumably to make quite sure no surprises emerge at the inquest’. [telex from British High Commissioner Johnnie Johnson to Foreign and Commonwealth Office, 23 April, 1990]

This raises a number of questions. Was the ‘inquest’ what became the Commission of Inquiry? Were these the same ‘judges’ that were eventually appointed to the Commission? Why would ‘senior judges’ have to review Troon’s report before the inquiry even began? And what were the potential ‘surprises’ that might cause concern?

As former Chief Justice Willy Mutunga remarked in a television documentary [Murder at Got Alila – Who Killed Dr Robert Ouko and Why? Episode 5], ‘That telex is striking evidence of how compromised the judges were. It’s not the business of judges to review evidence [that’s for] investigators and prosecutors’.

Disregarding The Rules Of Evidence

In setting up the Commission of Inquiry, President Moi was repeating what he had done in 1982 to investigate allegations against Charles Njonjo following the attempted military coup. Here again, there is evidence that the Commission’s modus operandi compromised it work from the outset.

A confidential telex sent from the US Embassy in Nairobi to the Secretary of State in Washington DC sent on 4th October, 1990, just after the Commission was appointed, stated: ‘The Commission of Inquiry has broad powers to make its own rules. For example, the Njonjo Commission asserted that it was within its powers to disregard the rules of evidence and go on “fishing expeditions” if it thought such was warranted’. Hearsay evidence too was to be admissible.

Former Chief Justice Willy Mutunga again, being interviewed for the documentary on Ouko’s murder: ‘It is very unacceptable in any justice system that people would be talking about “disregarding the rules of evidence”, or “going on fishing expeditions”. Hearsay evidence is inadmissible. That’s our law’. [Murder at Got Alila – Who Killed Dr Robert Ouko and Why?’ Episode 5].

The Gicheru Commission did allow cross-examination of witnesses but here again, as will be seen, some key accusatory witnesses did not appear in front of the Commission and therefore did not have their earlier testimony challenged.

Between October 1990 and late November 1991, the Gicheru Commission held 246 sessions and heard testimony from 172 people. Every day the hearings were covered verbatim in Kenya’s newspapers.

All four articles on Gicheru’s Ouko murder inquiry have now been published by the Kenya Forum:

Troon’s Fatally Flawed Report – Gicheru Ouko Murder Inquiry 30 Years On (Part 2)

Cover Ups and Prosecution – Gicheru Ouko Murder Inquiry 30 Years On (Part 3)

Aftermath: Jonah Anguka’s Trials- Gicheru Ouko Murder Inquiry 30 Years On (Part 4)

 

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