Why public inquests are outdated and are no longer roads to justice
Posted by African Press International on October 16, 2016
ELVIS ONDIEKI -1 | Saturday, October 15, 2016. Nation news Kenya.
The parents of former University of Nairobi student Mercy Keino, who died on Nairobi’s Waiyaki Way in 2011, have rejected a recent magistrate’s verdict that their daughter was courting death on the night she died.
In a reaction that will further fuel the widely-held belief that court inquests do not do much to probe mysterious deaths, Mr Joseph Keino and Mrs Christine Keino say they have been left with more questions than answers after the October 7 decision.
This is even as the Director of Public Prosecutions (DPP) Keriako Tobiko on Saturday revealed that he has turned down a July recommendation by the Directorate of Criminal Investigations that a public inquest be conducted into the May 5 killing of controversial businessman Jacob Juma in Nairobi.
Admitting that the inquest system has serious shortcomings and that it can be a waste of time, Mr Tobiko said he has returned the Jacob Juma file to the police to comb through areas he feels can provide evidence for a prosecution.
“If we just go to the inquest when certain areas have not been addressed, it’s likely, at the conclusion of the inquest, the magistrate will still say, ‘go and look at these areas’,” said Mr Tobiko.
Besides, the chief prosecutor said he has requested for Keino’s inquest file.
“I have asked for the entire material, which I’ll see whether in fact there is still room for us to move to the next level or whether then we say, ‘this matter is formally closed’,” he said.
Mercy’s mother told the Sunday Nation that the family will now “leave the matter to God”.
“We are not pleased by the magistrate’s ruling. We lost a precious life and that is not something that should have been handled in a casual manner. Though the State has closed the case, we know God has not closed it and He will give us justice some day,” said Christine.
She believes Kiambu Governor William Kabogo, who was hosting the party that Mercy left before meeting her death, should shoulder moral responsibility.
“As a family we hold Mr Kabogo morally responsible for the death of our daughter. As a leader, he should have taken the initiative to ensure every guest who came to the party returned home safely,” he said.
Mr Kabogo was the Juja MP at the time of Mercy’s death.
While absolving Mr Kabogo from blame, Kehancha principal magistrate Peter Ndwiga said it was hard to substantiate the cause of the death.
“It’s not forthrightly clear how the deceased met her death or how, when and by whom the fatal blow was administered. There are clearly no other co-existing circumstances which would weaken or destroy the inferences derived from that circumstantial evidence,” said Mr Ndwiga, who had been hearing the case in Nairobi before his transfer.
In the magistrate’s opinion, Mercy “wandered onto a busy public road in a drunken stupor in the middle of the night and hence may have greatly contributed or may have been the author of her own misfortune”.
The DPP is, however, sceptical about the conclusion of the inquest.
“What I understand the magistrate to have said is that at the end of it all, there are unanswered questions; that the proceedings raise more questions than answers. Inquests are supposed to provide answers, not to ask questions. But again, you understand the dilemma, the difficulty the magistrates find themselves in,” said Mr Tobiko.
An analysis of previous inquests reveals efforts suspected to defeat justice, delaying tactics and questionable conclusions — which, in the opinion of Homa Bay Senator Moses Kajwang, makes most public inquests “attempts at public relations”.
Inquests are listed in Kenya’s Criminal Procedure Code as the way through which the State can unravel murders or disappearances that cannot be explained at face value.
They normally start by a request from the State to a magistrate’s court. The magistrate is given powers to summon anyone they believe can help piece up the story.
A number of such inquests have, however, not helped much at their conclusion, and Tigania resident magistrate Paul Wechuli told the Sunday Nation that “there are those that can yield fruit but there are other inquests that won’t go far”.
An example of an inquest whose conclusion left tongues wagging is the finding in 2000 that University of Nairobi student leader Solomon Muruli committed suicide by setting himself ablaze inside his room at the Kikuyu Campus, despite evidence being provided of death threats he had received.
Also, an inquest into the death of Catholic priest John Anthony Kaiser ended in 2007 with a finding that a minister who was widely believed to have instigated it was not to blame.
Relatives of slain Muslim cleric Sheikh Aboud Rogo also thought an inquest into his shooting in 2012 would reveal the role of the police in his killing but, in the end, the verdict was that no one could be singled out as the aggressor.
Instances of delays include the inquest into the death of 29 people at Nakumatt Downtown in January 28, 2009 that has been going on at the chief magistrate’s court in Milimani for seven years now, with barely 20 witnesses out of 120 having testified by July.
Equally, little has been heard of an inquest into the death of seven soccer fans at a stampede at Nyayo Stadium on October 23, 2010 before a match between arch-rivals Gor Mahia and AFC Leopards.
The DPP says the slow speed of conducting some inquests waters down evidence should a trial be recommended.
“Delays affect negatively not just the inquest proceedings but even cases where charges have been preferred. Even criminal cases that we have taken to court that take too long to conclude. Witnesses get tired, others die, others get too old. In some cases, the forensic evidence gets either misplaced or lost,” he said.
Mr Tobiko blames the “circus” of inquests on a law that has been in place since the time Kenya was under colonial rule.
“It’s been in our statutes books since before independence. We borrowed it from the English model. But in England, they have since moved away from it. They’ve now come up with the coroner’s system, and the US has come up with the medical examiner’s office,” said Mr Tobiko.
A change in the law, he says, can provide for special magistrates who only conduct inquests, which will save time.
According to the State of the Judiciary and the Administration of Justice 2014-15, the case completion rate for inquests at magistrate’s courts during that period was 52 per cent, which is lower than the overall completion rate of 64 per cent.
The Independent Policing Oversight Authority (Ipoa) equally admits the current system allows police to conceal heinous actions.
“It is possible unprofessional and scheming police officers can indeed threaten witnesses besides tampering with evidence for the purpose of disposing of investigations using inquests,” Ipoa told the Sunday Nation through its spokesman Dennis Oketch.
To cure the mess, Mr Tobiko said his office is supporting the Coroner’s Bill, drafted largely by former government chief pathologist Moses Njue, that will give inquest magistrates the powers to carry out forensic investigations.
The Bill is yet to receive the Cabinet’s nod before it can be introduced to Parliament.
“The Coroner’s Bill attempts to address a number of deficiencies identified in the current inquest framework: The delays, the non-binding nature of the findings and the lack of forensic investigative tools by the magistrate, so that you find, for example, in some inquests, the magistrate still ends up — after spending a long time with the inquest — reaching the result that there are unanswered questions and refers back the matter for investigations,” said Mr Tobiko.
Kisumu-based criminal lawyer Richard Onsongo says one of the major weaknesses of the current system is that the State prosecutors are the ones who lead witnesses in testifying. Unless the family of the deceased has a lawyer, he says, witnesses are never cross-examined, meaning vital information can be omitted.
Mr Onsongo also notes the findings of an inquest cannot send anyone to prison directly. The identified suspect has to be tried anew.
“The witnesses testify afresh. The inquest does not determine your guilt. It says you have information and you are likely to be the person to blame for the death of the deceased. It’s not saying you’re guilty. So, the court will say, ‘get hold of this person and charge him’,” he said.
Vouching for a revision of the law on inquests, Mr Kajwang says: “We probably need to go back and look at the legislation around it and the motivation. But as long as we have given a licence to our security forces to conduct extra-judicial killings, then public inquests will just be window-dressing.”
Some of the inquests currently ongoing include that of the death of 2008 Olympic Marathon champion Samuel Wanjiru who allegedly fell off a balcony on May 15, 2011.
The demise of London-educated artist Antonio Trzebinski, who was shot dead in Karen in 2001, is also the subject of a public hearing. Another ongoing hearing relates to the death of Careen Chepchumba, a former Kenya Power employee who was found dead in her Kilimani house on February 14, 2012.
Such inquests should not be considered as futile exercises, advises Mr Wechuli, the Tigania-based magistrate.
Mr Wechuli says he has witnessed families finally coming to terms with how their loved ones died.
“There are some families to whom it brings closure. They come and narrate how they saw the deceased, what they found, what they think — they ventilate. Normally they are their opinions, but it’s closure for the family because they keep on asking, ‘why hasn’t anyone been arrested?’
“But when they come to the inquest and realise no one saw anything, at least they’ll know it is not that the police didn’t try; not that the police have something to hide,” he says.
Ipoa also urges Kenyans not to turn a blind eye on the process.
“Inquests are key in determining cause of death, assigning culpability, closing investigations and also causing further investigations into death and serious injuries,” Mr Oketch stated.
What stings most relatives, however, is the fact there is virtually nothing they can do to challenge an inquest’s determination.
“The most unfortunate part is that an inquest is a final decision. There is no step above an inquest because it is decided based on statutory powers.
An inquest, you know, is not a finding of innocence. In an inquest, there is no accused person,” says Mr Onsongo.
African Press International, (API)