“It is possible that even after stating a decision in this opinion, no action may be taken by any of those charged with doing so. If that be the case, then those who know the fate that befell Agnes on the night of March 31, 2012 shall be in the hound of heaven.”
These were the words of Principal Magistrate Njeri Thuku on November 5, 2019 at the end of inquest proceedings in the 2012 murder of Agnes Wanjiru allegedly by British soldiers.
When a judicial officer with the seniority of Principal Magistrate Thuku questions the probability and, by extension, the ability of a judicial process to deliver justice, one cannot help but wonder, what can?
This has been the dilemma for the family of Agnes and dozen others that have been taken through inquest proceedings in search for justice.
After years of agonising wait for justice to be delivered, questions abound; do inquests really work or is it another trick in the long list of getting away with murder?
Public judicial inquiry
An inquest under law is a public judicial inquiry into sudden or unexplainable deaths. Inquests are usually heard in a magistrate’s court with the aim of establishing the cause and circumstances leading to the death of a person.
“It is a fact-finding process. It does not deal with issues of blame or responsibility for the death, or with issues of criminal or civil liability. These can be addressed in other courts if necessary,” Principal Magistrate Thuku argues.
Usually, during inquest proceedings, witnesses are called to give accounts of circumstances pertaining or leading up to the death of an individual.
Inquest proceedings are not trials against particular suspects but instead, at the end of the proceedings, the magistrate will give recommendations either for further investigations or arrest and prosecution of particular individuals.
On paper, inquests are a proper procedure to employ in investigations of unclear deaths, particularly in the absence of a coroner.
A coroner is a forensic expert whose primary role is to investigate mysterious deaths. Kenya is yet to establish coroner’s services despite the enactment of the Coroner’s Act of 2017, more than five years on. This leaves the role of solving mysterious deaths to magistrate courts and the police department, two organs that are already overwhelmed with limited resources.
However, inquests are now emerging as way for criminals to get away with murder.
In most instances, they are viewed as a pathway for inept or complacent police officers to reduce the workload of investigating “not so important and or high-profile” murders.
In fact, most homicide investigations never take off and in the instances that they do, it is usually due to public pressure and or media attention.
Legal experts are of the opinion that the legal provisions of inquests are not to blame, rather other systemic issues along the criminal justice chain. Complacency, ineptitude and sometimes complicity are top among the major issues weakening inquests.
“There is nothing wrong with the law on inquests. But there are instances where some people find a soft landing and there have been complaints that some people use the process to conceal evidence,” lawyer and state prosecutor Dancun Ondimu told the Nation.
Agencies whose core mandate falls within the criminal justice system, particularly the police and public prosecutors, have been faulted as the stumbling block in hindering the effectiveness of inquests to deliver justice.
According to lawyer Wahome Gikonyo, the bark stops with the Office of Director of Public Prosecutions (DPP) whose primary role is to prosecute and the Directorate of Criminal Investigations (DCI), which takes point in all cases of sudden and or mysterious deaths and homicides. “In my view, I say it is up to the DPP and the DCI to up their game. It all depends on the evidence presented at the inquest because a magistrate cannot invent evidence,” Mr Gikonyo argues.
In the case of Agnes, Principal Magistrate Thuku concluded that she was indeed murdered by one or two British soldiers and recommended prosecution. Her recommendations served to the DPP were that British soldiers who were at the Lion’s Court Hotel on the night of the murder were to be questioned and suspects extradited for trial
She also recommended investigations into the cover of the murder by management of Lions Court Hotel.
It has been over three years since the magistrate made the remarks and true to her sceptical prediction, nothing has been done to bring the killers to book. This is despite global media pressure and public outcry.
To date, the DPP continues to point an accusing finger at the DCI over the stalemate.
Last year, DPP Noordin Haji acknowledged the viability of the inquest proceedings as a guide to a successful prosecution and directed DCI’s homicide department to seal pending loopholes before initiating the extradition of the suspects from UK.
In a similar case in Othaya, Nyeri County, the family of Samuel Ruoro Ritho feels let down by the criminal justice system regarding his brutal murder between the night of June 24 and the dawn of June 25, 2018.
Following weeks of a poorly executed investigation characterised by inconsistencies, omissions and systemic errors that point towards ineptitude, complacency and probable collusion by investigators, the case went for public inquest at the Othaya Law Courts.
After two years and 10 months of investigations, including more than a year of the public inquest before Senior Resident Magistrate David Ireri, the only breakthrough authorities have made is the conclusion that Mr Ritho was murdered. This was the same conclusion made on June 25, 2018 by detectives when his body was fished out of a decommissioned cattle dip near his home and confirmed by a pathologist through an autopsy nine days later.
In his judgment at the end of the inquest last year, the magistrate concluded that Mr Ritho was murdered but the evidence produced did not link anyone to the crime.
This was despite police receiving a directive from the ODPP to arrest three suspects and charge them with murder. It still remains unclear why police failed to make the arrests and opted to go the inquest way even after convincing prosecutors that they could sufficiently prove culpability.
Now, the family has raised concern about how the case was handled and feel the inquest was just a way of burying it.
“The proceedings were clearly just a waste of time because we already knew my brother was killed and the suspects had been identified. We at least hoped that with the evidence given in court, police would arrest the suspects but that did not happen. Police have never bothered to investigate the matter again. They just buried the case and now a killer walks free among us,” Susan Ritho, the deceased’s brother told the Nation.
In the case of Ritho, Lawyer Gikonyo turns the blame on the detectives for failing to conduct conclusive investigations especially on his communications before his death. Witnesses told the court during the inquest that the deceased had been lured out of his house using a text message on the night of the murder. The sender and content of the message remain a mystery despite detectives acquiring the victim’s cell phone data.
“In that case I blame the DCI because the victim had a phone and he had been lured to his death through it. Clearly someone failed to conduct proper investigations. Again, in some of these cases the investigators could be complicit. How would you expect them to investigate themselves?” he argues
Similarly, the lawyer argues that the decision to opt for inquest proceedings rather than straight up prosecution is made by the DPP and not the police. However, that decision, he says, is advised by the kind of evidence the detectives present to the ODPP.
While bereaved families feel that inquests are where murder cases go to die, legal experts still believe that there is still room for justice to be served regardless of how long it takes, the old adage “justice delayed is justice denied” notwithstanding.
“The conclusion of an inquest does not mean the case is closed. There’s still an opportunity for new evidence to be brought forward. Besides, murder cases are never fully closed because new evidence could come up later,” Mr Gikonyo says.
He argues that all players in the entire criminal justice system are to blame for failing to discharge their respective mandates.
Mr Ondimu blames systemic lapses in hindering success of inquests but says there are other judicial channels that can be used to complement the inquest system.
Like Agne’s case, the 2011 murder of University of Nairobi student Mercy Keino was subjected to an inquest whose determination was inconclusive.
Kehancha principal magistrate Peter Ndwiga said it was hard to substantiate the cause of the death, absolving former Kiambu Governor William Kabogo who had been named as a person of interest.
Similarly, the mysterious death of Olympic marathon champion Samuel Wanjiru in 2011 was never resolved even after going through public inquest. Inquest proceedings in the killing of Baby Samantha Pendo in Kisumu following 2017 elections found police collectively responsible for the death.
The proceedings before Resident Magistrate Beryl Omollo could not, however, single out a specific suspect among a contingent of anti-riot police officers who had stormed the house of Lenser Achieng’ and Joseph Abaja on the night of the murder.
Consequently, she recommended that six top commanders face trial for Baby Pendo’s murder. The murder trial is yet to take off.