Despite official rhetoric about the separation of powers, colonial-era judges were routinely ‘used as an instrument of policy’, with this relationship between administration and judiciary essentially sustained after independence, writes Ramnik Shah, in a discussion of Kenya’s post-colonial legal system.
Under the colonial regime, the judiciary was an arm of the state, not entirely independent of it. In this respect, British practice was different from the US model of separation of powers, notwithstanding the rhetoric of a demarcation between the legislative, judicial and executive functions of government that was fed to colonial subjects as part of their education, for power was controlled and emanated from the centre through a complex interlocking mechanism of patronage in appointments. The judges were thus liable to be, and were routinely, used as an instrument of policy in the governance of the colony in a variety of ways - some direct, some subtle. They were an essential part of the ruling class, all serving a common purpose. This was most evident during the Mau Mau emergency. Any judge who displayed an anti-establishment tendency was discreetly dispatched to other pastures.
It was inevitable that in the rapid transition to independence, this tradition of a cosy relationship between the administration and the judiciary should be carried over as a colonial inheritance. And appointment of judges, and of the head of the judiciary in particular, was an important element of that. Under the independence constitution, this power was broadly speaking vested in the executive.
At the time of independence, the sitting Chief Justice was Sir John Ainley. He carried on, under bilateral financial and strategic arrangements between the departing British and the newly independent Kenya governments, until May 1968, when he was succeeded by another serving British expatriate judge, Justice Farrell. So far so good. But trouble lay not too far ahead, for Chief Justice Farrell, sitting with Justice Dalton (another British expatriate judge) as a criminal appellate court, waded into politically murky waters when they reduced the sentence of one year’s imprisonment passed on Bildad Kaggia, the vice-president of the opposition party, the KPU (led by Oginga Odinga), for a minor offence to six months. That brought down Kenyatta’s wrath upon him; he was unceremoniously removed from office and replaced by Kitili Mwendwa, the Solicitor-General, in July 1968. This was the first occasion when political forces had intervened so directly in the make-up and functioning of the judiciary in Kenya. It became a major talking point within the elitist circles of lawyers and intellectuals, though much of it was conducted in whispers! The Kenyatta Presidency had shown its mettle: it was not going to brook any dissent, period.
Mwendwa had the distinction of being not only the first local but also the first African Kenyan to be appointed as Chief Justice of the country. Although having excellent academic qualifications, he had had no experience of practising as a lawyer, nor had he held any judicial office, whether in Kenya or anywhere else. As the Nairobi Law Monthly observed recently, in January 2011, there was little evidence of any ‘jurisprudential contribution’ made by Mwendwa during his short term as Chief Justice and, moreover, his departure from that post was as sudden as his appointment to it in the first place. What happened was that in 1971 there was an attempted coup against the Kenyatta government. Mwendwa was implicated in that and so he was forced to resign, as simple as that.
He was followed by two more British expatriate Chief Justices, Sir James Wicks and Sir Alfred Simpson. As it happened, Wicks must hold the record as the longest serving Chief Justice of Kenya, for his term lasted 10 and a half years, from July 1971 to January 1982, whereas most of the others in the long line of both his predecessors and successors served an average of 3 years only! He suited the whims and wishes of first the Kenyatta and then the Moi administrations admirably. During his time there was a phenomenal growth in the legal profession and the lower judiciary by an infusion of African lawyers and magistrates, and the first wave of High Court judges, but there was no commensurate improvement in the standards of judicial performance. Given his long unbroken reign, he could have brought in much needed reforms in the administration of justice. He failed in that respect. In subsequent years, there was to be a running thread of political involvement and controversies in the appointment, discrediting or removal of one Chief Justice after another - Simpson, Madan, Miller, Hancox, Chesoni, Chunga, just to name a few. That, alas, would take us down a whole new line of enquiry and narrative.
But let’s backtrack, on a related front, to pre-independence days. While, on the one hand, the judiciary was wholly composed of British colonial service appointees, the legal profession was dominated by local European and Asian practitioners, in unequal strengths numerically, though in power terms the Europeans had the greater muscle. Even so, there existed a degree of parity between the two communities, a grudging form of recognition of practical realities, even if justice as dispensed did not always live up to the ideals of fairness and equality between all. One consequence of this was that an unwritten convention came into being, when the Law Society of Kenya was established in 1948, whereby the office of president of the Society was to be held by a European and an Asian in alternate rotation, as a glance at the list of early past presidents (Slade, Mangat QC, Kaplan, Sorabjee QC, Schermburucker, Nazareth QC, Lean QC, Madan QC, Mackie-Robertson QC, Chanan Singh, and so on) will show. This went on right until 1970, when Sam Waruhiu became the first African president (the terminology was later to change to Chairman and Vice-Chairman) and to serve an unprecedented two consecutive terms, 1970/71 and 1971/72.
This was hardly surprising, since it is common knowledge that there were only a handful of African lawyers, right until after independence. As it happens, the dearth of African lawyers was exercising the mind of at least one African member of Legco (Legislative Council), Mr Awori, way back in 1956. In a debate on the Governor’s speech from the Chair on 21 November 1956, he pleaded for the government to facilitate ‘Africans to take law’ when it was stated by the Director of Education that 72 people from Kenya were studying law in Britain. This is how the exchange went:
MR AWORI: Even when we have the figure of 72 people studying law I would be able to challenge my friend, the hon. Director of Education, that less than a dozen of those are African.
MR WADLEY: It is 12 exactly.
MR AWORI: Well, Sir, we are not going to fill this country with many African lawyers at all. At the present time out of all those in the country there is only one in his own private practice and less than four in the Government.
The sole, and first, African advocate in private practice in 1956 was CMG Arwings-Kodhek, while Charles Njonjo and MJ Seroney were Government lawyers. Others, such as Henry Warithi, Samuel Otieno, Mugo Waiyaki and Samuel Kivuitu, came around 1960. So who the 12 African law students in Britain might have been is a bit of a mystery. And still later were to come people like Kitili Mwendwa, James Karugu and John Sibi-Okumu, all contemporaries of mine at Lincoln’s Inn in the early ’60s. Even so, from the mid to the late 1960s, there were few African lawyers, and the numbers only began to rise when the Universities of Dar-es-Salaam and Kampala, and later Nairobi, began to turn out law graduates who then took the professional training course into enrolment as advocates. Meanwhile, the government was content to recruit judges and state counsel from Britain, something that had become a sore point among the resident legal community, because it was felt that these outsiders were neither committed to the country nor particularly sympathetic towards the majority population.
It was against this background that I wrote in The East African Standard of Tuesday, 27 June 1967, castigating the government for continuing to retain or recruit fresh British expatriate state counsel, magistrates and the like. This was in response to the action of the Vice-President in imposing an immigration ban on foreign lawyers engaged to conduct specific cases, on the ground that there was no lack of competent local lawyers who could equally do the job. I was therefore pointing out the inherent contradiction in such policy.
Going back in time however, the question of standards of advocacy had actually been the subject of a lively Parliamentary debate in Legco in June 1956, at the height of the emergency. This was in relation to what were known as ‘dock briefs’, the only form of state legal aid that was (and still is, I think) available to persons accused of ‘capital’ offences (murder or treason) where the penalty on conviction is death. I wrote about it in AwaaZ (Vol 7, Issue 2, 2010) under ‘My Last Murder Case, Revisited’. An African Representative member, Mr Gikonyo, had expressed misgvings about the quality of representation in such cases on the ground, in effect, that the lawyers did not do their professional duty as well as they might otherwise because of the poor rates of remuneration.
This brought on a spirited intervention from Chunilal Madan (see my related article on him in this issue), even though the matter fell outside his normal brief as the then junior Minister for Commerce and Industry. He said:
In this respect, I declare an interest. I am still an advocate, and also happen to have the privilege of being the President of the Law Society of Kenya.
… I should like to say, Sir, that the suggestion that advocates who undertake dock briefs on behalf of poor, impecunious accused persons in capital cases either are not interested in defending the cases, or do not defend those cases properly - such remarks are nothing but a travesty of the truth. I know it from my personal knowledge, Sir, and those who have come into contact with the profession also know it . . . that the Bar has a fine record of selfless service in this matter. They have undertaken the defence and prosecution of such cases at considerable sacrifice to themselves, and in this category one can include some of the leading members of the Bar, who would have earned many times over the money which is paid to them which they often even refuse to accept.
And so he continued in that vein, insisting that what members of the Bar did in such cases deserved ‘gratitude, and nothing else, and not unfair, unjust criticism like the one we heard . . . this afternoon’.
Mr Gikonyo then explained that he was not ‘levelling a charge against the Bar’ but merely pointing out that ‘there is a feeling . . . that, unless someone can pay for himself, Government is paying less than what perhaps the lawyer would have asked, he does not get the proper defence . . . that a lawyer who comes to defend an accused person without he himself paying, is paid so little that therefore he is not interested in defending him’.
This also prompted Chanan Singh to step in, to defend the lawyers. He said: ‘Naturally, lawyers have to appear before Courts from day to day, and they care at least for their name. They would not want - no lawyer would want - to give any judge the impression that he is not worth his salt, whatever his fee - the judge naturally does not know what it is. The lawyer has to work and work as hard as he can, if for nothing else at least for his name. A lawyer who would not work honestly on a dock brief naturally would get a bad reputation among his own fellows, and no lawyer wants to do that . . . ‘.
What was so remarkable was that this was a very English common law kind of discourse. It is the same sort of rationale that is advanced in Bar circles here in Britain, and the Kenyan approach was no different in those days nor, I would like to think, it is now.
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* Ramnik Shah (better known as RKD) practised as an advocate in Nairobi for 10 years from 1964, and was vice-chair of the Law Society of Kenya for 1973–74. After settling in Britain, he practised as a solicitor there for 30 years from 1975 and following retirement continues to write as a critic and commentator in various forums and as a member of the editorial board of the London-based Journal of Immigration Asylum and Nationality Law.
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