Cholmondeley and Me

It was one o’clock in the morning and my beeping phone woke me. One of my papers had been calling, late, very late. I called them back.

"Tom Cholmondeley has just been arrested. He shot someone on his land," said the night news editor in London.

"Where’s that coming from?" My fuzzy mind knew it didn’t sound right. "That was a year ago. The case was dropped. Someone’s sent an old story."

"No, no he’s done it again."

And that was it. Cholmondeley, released a year earlier after shooting an undercover wildlife ranger in self-defence, was already tried and hanged. Driving up to Nakuru the next morning with the Nairobi press pack, we were pretty much agreed. To shoot one person is unfortunate, to shoot two is starting to look like carelessness.

But then the trial began four months later and things started to unravel. The prosecution didn’t seem to have much of  a case. No-one had actually seen what happened. They called witness after witness – 38 in all – many of whom had little to add in the way of evidence. The police investigation sounded shoddy. The scene had not been secured, one of the suspects – Cholmondeley’s friend Carl Tundo – had remained free for hours after the shooting. Witness after witness struggled under cross-examination. 

Spent cartridges from Cholmondeley’s rifle were not found for days and days. Then they appeared on the day the deputy commissioner was visiting.

The prosecution seemed to rely entire on hearsay, a confession Cholmondeley made to police officers in the immediate aftermath of the killing. He later changed his story to say that Tundo also had a gun.

Defence witnesses also raised serious questions. Staff at Tundo’s parents house said he had burned his clothes on the night of the killing. He often carried a handgun tucked down the back of his trousers. They also found two spent cartridges from a handgun in the house a day or so later. A forensic pathologist – more familiar with gun shot wounds than an expert called by the prosecution – said the dead man’s wounds were not consistent with a high-powered rifle carried by Cholmondeley. 

I was one of two foreign correspondents who followed the case from start to finish. As the verdict loomed we were both of the same opinion. The prosecution had not done enough to prove Cholmondeley was guilty of anything – much less murder. The lay assessors agreed, finding him not guilty.

Any fair court, we agreed, would also find him not guilty. The only worry was that this was not an ordinary case. It was a highly charged trial with potentional political repercussions. Setting Cholmondeley free might not be possible in a country convinced of his guilt, and with colonial chip on its shoulder.

And so it proved. In what looks like a carefully contrived fudge, Cholmondeley has gone down on a lesser charge. No reasonable judge could have found him guilty of murder. Even manslaughter seems hugely problematic. But the country has got what it wanted: the white toff is guilty.

In so doing the judge has disregarded the entire defence and relied on hearsay evidence.

The verdict exposes some severe shortcomings in Kenyan justice:

• the inability of the police to conduct any sort of investigation. They must rely on catching people in the act
• the trial has lasted three years. Even high profile cases like these are subject to delay after delay. The system is under intolerable strain
• mob justice – common on the streets – exerts pressure on what happens in court. Public perception seemed more important than the evidence
• lack of forensic science facilities. There was no way of analysing bullet fragments taken from the victim

It took the trial of a white Aristocrat to make me understand the failings of Kenyan justice. I sat through three years of this trial because it was one my newspapers were interested in. But the same faults are on display in trials for thousands of ordinary Kenyans, who cannot afford the kind of defence available to Cholmondeley. No-one really trusts the law. That’s why opposition leaders set their thugs on the rampage last year – they knew a legal challenge to rigged elections would go nowhere. 

And if you can’t trust the law, nothing else matters. Who will resolve your business dispute? Protect your hard-won freedom? And can democracy survive?

Cholomondeley will be sentenced on Tuesday. I’m heading to Chad on Sunday for a different project so I’ll miss the final installment of this story (although an appeal will follow). Some of my friends rather sneered at my interest in this case. But it has taught me as much about modern Kenya, its tensions and challenges, as last year’s election violence. Just like the riots, things seem rather different now.