The Attorney General and the Director of Public Prosecutions slept on the job by failing to have British soldiers accused of murdering Agnes Wanjiru in 2012 extradited and prosecuted.
Wanjiru, 21, was last seen entering a hotel room at the Lions Court in Nanyuki with two British soldiers on March 31, 2012. Her body was found two months later in a septic tank next to the room. She left behind a five-month-old daughter. The court concluded that she was killed by one or two British soldiers.
In an inquest heard before the Nanyuki law courts between October 8, 2018 and concluded on November 5, 2019, Principal Magistrate Njeri Thuku concluded that Agnes Wanjiru was killed by British soldiers.
The findings of the inquest were copied to the DPP and AG with the aim of facilitating arrest and prosecution of the murder suspects.
According to lawyer Wahome Gikonyo, the recommendations given by Ms Thuku were sufficient for the AG to enforce the extradition of the suspects to be tried for murder under Kenyan law.
“The inquest found that an offence of murder was committed and the next course of action ideally would have been for the DPP to prosecute the murder case. The role of the AG would have been to enforce the arrest and extradition of the suspects and witnesses,” Mr Gikonyo said.
Two years after the inquest was concluded, no action was taken and the matter was swept under the rug until a British newspaper, The Sunday Times, exposed the cover-up.
Notably, while delivering her decision, the magistrate expressed scepticism regarding whether any action would ever be taken to hold Wanjiru’s killers accountable.
“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,” she said in her ruling.
Legally, a court-guided inquest is an investigation by itself, where police produce evidence and witnesses in a murder investigation. Ten witnesses testified in the inquest.
Mr Gikonyo argues that there is no need for fresh investigations as the court-guided inquest concluded that British soldiers were culpable.
“The suspects and the witnesses and suspects should be in Kenya by now, with the DPP looking to prosecute,” he said.
Nine soldiers from the 2nd Battalion -- Duke of Lancaster -- were named as possible suspects and witnesses because they were at the hotel when Wanjiru died.
They are Kingsman (KGN) Thornborrow J, KGN McKenna L J, CPL Byrne S C, SGT Millar S J, SGT Higgins S T, KGN Bradshaw K A, KGN David Giles P, A Coy (A Company) and Armitage A J, A Coy.
Another soldier only identified as Higgos also booked into the hotel but his sign-in form was never presented to court. The hotel management could not explain how the form disappeared.
In the exposé by The Sunday Times, some soldiers said the killer confessed to his crime shortly after he committed the murder. The whistleblowers reported the matter to the British Army command, but the case was covered up long enough to allow the soldiers to leave the country.
Taking into consideration the evidence presented during the inquest and the determination of the magistrate, legal experts now turn an accusing finger towards the DPP and the AG for failing to act appropriately.
“It is quite straightforward. All they needed to do was have the soldiers extradited to Kenya. The soldiers who were never questioned will give their statements to the police and the DPP will summon those who testified in the inquest to testify in the murder case,” Mr Gikonyo said.
DDP Noordin Haji said he will give a comprehensive response, later but passed the buck to the AG.
“I will respond in relation to the ODPP in due course. Perhaps you should ask the AG what they have done because we are two independent offices,” he said.
However, debate on how and under what jurisdiction the matter will be prosecuted rages on.
Kenya and the United Kingdom share a treaty that guides how cases against British Army personnel will be undertaken.
However, lawyers like Mr Gikonyo argue that this does not give the British soldiers immunity against prosecution for the murder under Kenyan law.
At the same time, Britain earlier this year enacted a law seeking to protect soldiers from prosecution for cases five years after they occurred. In the case of Wanjiru, it has been nine years.
One, the prosecution should give exceptional reasons for the military personnel being charged outside the UK. Prosecutors should also consider the adverse impact of overseas operations on a service person, including on their mental health and whether there have been previous investigations into the matter and whether any new compelling evidence has come up.
Prosecutors will also require consent from the relevant legal officer in the UK before prosecution is instituted.
The interpretation of the new British law and the Defence Corporation Agreement between Kenya and UK now hold the key to finding justice for Wanjiru.
Laikipia Governor Ndiritu Muriithi has called for the review of the Defence Co-operation Agreement between Kenya and the United Kingdom to ensure that atrocities done by the foreign soldiers are punishable.
Mr Muriithi yesterday called on the two governments to ensure that the suspects involved in the murder of Wanjiru nine years ago are prosecuted accordingly.
"If prosecuting foreign soldiers would threaten the Defence Co-operation Agreement between Kenya and UK, so be it. No defence pact should give foreign soldiers the license to kill our citizens, and we should not negotiate about that," Mr Muriithi told the media at his Nanyuki town office.
