The government’s support for a flawed Kenyan prosecution was based on an incorrect analysis that may put it in breach of its own death penalty policy, it has emerged.
UK officials at the Foreign and Commonwealth Office (FCO), Home Office and Metropolitan Police offered police support in 2013 to Kenya’s public prosecution in the case of Ali Babitu Kololo – a 35-year-old father of two from a village in Lamu, Kenya. Mr Kololo was sentenced to death for robbery with violence by a Kenyan court in August 2013; the trial followed his torture by local police into ‘confessing’ to a role in the 2011 kidnapping of British tourist Judith Tebbutt and the murder of her husband David.
The FCO said last week that the government had offered support based on its analysis that in Kenya, the death penalty is ‘discretionary’ for Kololo’s alleged crime of ‘robbery with violence’. In fact, it is mandatory. The claim was made in response to questions from legal charity Reprieve and law firm Leigh Day, who are seeking a judicial review of the government’s decision to support the Kenyan investigation.
The Foreign Office also dismissed concerns that Mr Kololo’s trial was flawed, despite the fact that he had no access to a lawyer for much of it, and was forced to cross-examine witnesses, including key witness DCI Neil Hibberd, on his own. The proceedings were carried out in English and Swahili, languages that Mr Kololo does not speak fluently.
In correspondence with Leigh Day, Scotland Yard has admitted that evidence used in the trial, and presented by DCI Hibberd in his testimony, was circumstantial.
Reprieve has also discovered that the specialist Metropolitan Police investigators sent to Kenya failed to interview Mr Kololo after his arrest. The police claim not to have known Mr Kololo had been tortured, despite widespread reports.
The government’s own guidelines prohibit support for public prosecutors in countries where there is a high risk of receiving a death sentence, while the FCO’s Strategy for the Abolition of the Death Penalty designates it a ‘priority country’ for UK abolition efforts.
Responding to reports about the case, a Foreign Office spokesperson said today that the government Britain opposed the death penalty in all circumstances, and that the government would “continue to call on all countries around the world that retain the death penalty to cease its use."
Maya Foa, head of Reprieve’s death penalty team, said: “Despite the government’s protestations, the fact remains that UK officials willingly assisted the Kenyan prosecution in sending a man to his death, based on a confession extracted under torture. Ignorance is not a defence, and the government should have known better than to assist the prosecution in a country where the death penalty is a mandatory punishment for the alleged offence and police torture is common. There are strong indications that Ali Kololo is innocent of this crime. If the UK government is serious about its commitment to promoting justice overseas, it must right the wrongs and ensure real justice is done.”