Very sorry it has taken me so long to report on Tom’s Mention on Wednesday – I’ve an abcess under a tooth, and a walloping go of flu, and we’ve had another 1500 acres of the farm burnt – this time it was arson, and we are unamused! The news for Tom is that his Appeal will now be heard on May 26th/27th – the begining of the week, instead of the end – and his next “Mention” will be on June 10th, bywhich time we pray for the decison of the Appeal Court, and to know when the Defence can start. Poor Tom has worn out the seat of his pants sitting on those endless hard wooden benches in court – Sally has had them darned, but the darn is rubbing him raw, so a new suit is necessary and will appear at the end of May!
Now we wait for another three months, till May 29th & 30th, for Tom’s appeal to be heard in the Appeal Court.
On Tuesday, the Prosecutor, Mr. Tobiko, the Director of Public Prosecutions, harangued the three Judges on the bench for over an hour, saying that the appeal was “incompetent” because Tom hadn’t yet been convicted of anything, only accused, and that the Court of Appeal did not have jurisdiction to handle the appeal against the contravening of a basic right protected in the Constitution.
Fred answered and disagreed and asked for a “fair trial” – and between them they quoted English and Maritime Law, as well as Kenya Constitutional Law – and the Judges took 15 minutes for a pee-break and a private Consultation, and then announced that they were perfectly competent to handle the appeal under Kenya Constitutional law, and wanted two days to hear it as soon as possible, because they thought the case had dragged on for too long.
So do we all, but the first date available that suits the DPP is in three months time – which means that Tom will have been in Kamiti for two years, before his Defence even starts, which ever way the appeal goes. After that, Fred thinks we need four or five court-days – and then we wait for the Judge’s ruling. The nine chaps in Remand with Tom have waited for six years already.
The Kenya newspapers wrote very balanced reports of it all – it is a pity Tom is so photogenic, even in handcuffs!
May 29th and 30th 2008. As Lady Delamere has said in the comments, Fred is trying to get a date sooner than that but it is looking unlikely.
This is a bleak time.
Edward, you are very kind. As Team Tom, can we say that your words are so appreciated. It is a perfect time to boost us with support like this – May does seem quite distant!
Lady Delamere has sent you the following:
We will let you know more when we have it.
Message starts: Have just sat with Tom below court (a wonder of stolid colonial architecture, slightly faded) and have some good news in that the first part of the interlocutory appeal has gone in his favour in that the Appeal Court has found that it is allowed to hear appeals in this case under their jurisdiction. After great, long winded arguments quoting English and maritime law the three judges ruled just before lunch.
The matter will now be heard “under urgency” on the next two available dates. We await news on when that might be. Nearly eight months after filing this appeal it would be hopefully sooner rather than later and there is some indication that the new direction in “public policy” is to determine this case as quickly as possible.
Love Tom, Sally and Lizzie
As anyone following the case will already be aware, there has been an eight month delay in Tom’s already drawn out court case. You may well ask how he can be appealing a case where a judgment has not been reached. Team Tom will *try* to explain (with help from a letter from Tom).
On the 25th July 2007, there was a ruling in the case which has implications for everyone in Kenya if it remains unchallenged. The State prosecution has been allowed to have access to all of the defence evidence, witness statements and details – before the defence starts. Think about this for a minute…
Not wanting to belittle this website’s readers, we will not detail how devastating it could be to any man on trial for his life, to have his defence effectively open for examination eight months before he is able to bring it before a court. This is not a fair trial.
A trial offers the state/accuser an opportunity to prove an accused person’s guilt – this then goes up against the accused person’s right to offer a defence (Team Tom do not pretend to be lawyers, but this seems pretty fundamental). The action taken in this trial means that Tom will have to prove his innocence with all the defence cards being held by the prosecution whether or not he speaks in court.
This is not just about Tom, although to some of us he is obviously our immediate concern. This makes every Kenyan coming before court against a Kenyan State prosecution at risk of having their rights quietly washed out from under them. Tom can take this and fight it with everything he has, for himself (yes, of course) but also to protect every other Kenyan who may or may not have access to the resources he has, to defend themselves against the State.
This case has so many other issues riding on it; losing one of Kenya’s safeguarded freedoms in the meanwhile is slipping under the noses of the very people who should be concerned.
Whether you are reading this article as a friend of Tom, or as someone who wishes he would just go away – please take a few minutes to think about what is happening in this case; and how judicial hectoring could actually be denying all Kenyans the right to bring defence against the State from here on.