Cholmondeley Trial opens old colonial wounds

By Nick Wadhams
Nairobi
06 August 2007

Thomas Cholmondeley is the sole heir to one of Kenya's largest land-owning dynasties, and the scion of one of its most famous colonial settlers. For the second time in a year, he is accused of murdering a black Kenyan. As Nick Wadhams reports from Nairobi, his case has stirred fears that whites continue to receive preferential treatment in Kenya's judicial system.

Thomas Cholmondeley sits in courtroom, surrounded by prison wardens (file photo)
Thomas Cholmondeley sits in courtroom, surrounded by prison wardens (file photo)
A little over a week ago, Thomas Cholmondeley sat in a wood paneled courtroom, surrounded by curious onlookers, his family, and a host of photographers eager to snap his picture.

He listened as his lawyer, Fred Ojiambo, appealed a court ruling that he disclose his defense witnesses. And he sat silently as the judge ordered the case adjourned for nearly two months - until September 21 - while Ojiambo's appeal is considered.

And then, silently, he stood up and was escorted away, never saying a word, his expression never changing. As he walked, cameramen got all the pictures they wanted, and everyone in the packed courtroom stared.

Cholmondeley's silence and the furor that surrounds him have come to define his case ever since he allegedly shot and killed a poacher on his family's 22,000 hectare ranch north of Nairobi in May 2006.

In the months since, observers and lawyers on both sides say the case has come to be about much more than a single murder. It has been hijacked by politics and exposed some of the festering wounds in Kenyan society: resentment toward wealthy landowners from poor locals who surround them, fears that whites get special treatment, or fears that Cholmondeley is being made an example of to prove exactly the opposite.

Outside the courtroom after the latest hearing, Ojiambo said he feared exposing Cholmondeley's witnesses could put them at risk. He argued that the case had long ago stopped being about what Cholmondeley did or did not do that evening on his family's ranch.

"What seems to be the well-known constitutional right of an accused person could very well be trampled upon and would expose the accused and the witnesses of the accused to undue pressure from police," he said. "The evidence by the defense witnesses could be very important and if police know who they are there's no reason why they can't lean on them."

Cholmondeley's case touches a raw nerve partly because of his background. He is the great-grandson of the 3rd Lord Delamere, who was a central figure in the sex and booze-soaked expatriate community dubbed "Happy Valley" that sprouted up in the Kenyan highlands between the two World Wars.

It is also the second time he is accused of killing a black man on his family's ranch. Kenyans were furious when charges were dropped against Cholmondeley in May, 2005 after prosecutors determined they didn't have enough evidence against him in the shooting death of an undercover wildlife officer.

The dismissal of those charges brought people into the streets in anger. In recent weeks, lawyers for the slain officer have sought to have the charges reinstated. They claim that the public prosecutor who made the decision was acting in Cholmondeley's interests.

"It is our view that he was quite mistaken in the actions he took and that mistake was motivated by circumstances that are not legitimate," he said. " If he had applied his mind objectively and fairly, he would clearly have seen that there was absolutely no basis for him to have sought to terminate the charges. And that is the basis on which we are maintaining the argument in court that the charges should not have been dropped at all."

Cholmondeley's case is particularly potent this year. Kenya is gearing up for presidential elections in December. In the intricate world of Kenyan politics, where everything seems interconnected, an acquittal could draw Kenyans' ire against President Mwai Kibaki, who is seeking a second term.

The same judge that oversaw the previous case against Cholmondeley is again on the bench, and he too may want to send a message. Cholmondeley, who has denied murder, could face the death penalty if he is found guilty.

"It is a test case for our criminal justice system in that, if it is found to have been poorly investigated and he is acquitted, the public will still take it with a pinch of salt," said Ojwang Agina, a legal analyst with decades of experience in Kenyan courtrooms." If he's acquitted the general impression will be that whites get preferential treatment in the Kenyan judiciary."

That is exactly that attitude that Cholmondeley's lawyer, Ojiambo, bridles against. He has barred Cholmondeley's family from speaking to the media. He argues that no one, including the police, is looking at the facts - examining the possibility - as he contends, that a friend who was walking with Cholmondeley that evening fired the fatal shot.

And he argues that Kenyan politicians have purposefully inflamed tensions surrounding Cholmondeley. Last year, Kenya's assistant information minister vowed to take the law into his own hands if Cholmondeley is released.

"It is quite possible that the publicity that this case has attracted could turn out to be to his disadvantage because much of what is being recorded and much of what is being said is mainly against him," he noted. "Nobody has tried to be very fair and very balanced about reporting what actually goes on in court."

In the end, legal bureaucracy may defuse the worst of the political wrangling. Defense arguments have yet to begin, and it's now possible that Cholmondeley's trial will not be finished by the time the presidential election takes place.