Era when the LSK paid for its colonial sins


During the 15 years of the Jomo Kenyatta regime, the LSK was served by a total 14 chairpersons, one more than the number of LSK chairpersons who served under the successor Moi regime. They included Justice Harris (1963-1964), B.T. Modi (1964-1965), S.M.C. Thomson (1965-1966), G.S. Sandhu (1966-1967), K.B. Keith (1967-1968), E.P. Nowrojee (1968-1969), P. Le Pelley (1969-1970), Samuel N. Waruhiu (1970-1972), M.Z.A. Malik (1972-1973), J.A. Couldrey (1973-1974), Ramnik Shah (1974-1975), S. Sangale (1975-1976), P.J. Ransley (1976-1977) and Krishan C. Gautama (1977-1979).

These were men (all LSK chairpersons were men until the election of Rachel Omamo in 2001) who presided over an LSK that was facing momentous external changes and an internal revolution. Except perhaps for a name or two, the rest of the names are largely unrecognizable in Kenya’s history, most likely because the bearers of the names scarcely engaged in public-facing activities which would draw attention beyond the small circle of their professional colleagues. They are also reflective of how the LSK was an organisation whose racial composition at the time was tilted in favour of the non-indigenous groups.

Internally, the LSK was involved in a fight to rebalance its membership’s racial equation, with indigenous lawyers emerging to challenge the dominance of non-indigenous groups. The dominance of non-indigenous groups in the organisation had in itself exposed it to at least three challenges. First, it had rendered the LSK a colonial relic, which could not comment on or engage in nationalist politics. This made it irrelevant to the national discourse in the newly independent Kenya. It therefore needed to quickly transform itself to gain the necessary legitimacy which would give it a voice on national affairs.

Secondly, the internal racial composition of the LSK made it vulnerable to nationalist attacks, were it to venture into robustly challenging the rule of law record of the Kenyatta regime. Scholars Ghai and McAuslan actually warned that given the nature of its racial composition as well as its absence in the decolonisation process, the LSK was so vulnerable that had it ventured any public comment critical of government, this would have been quickly seized upon as evidence that it was not loyal to the new state. There was even fear that if it became too critical, it would not have been beyond the Kenyatta regime seizing and nationalising it in the name of availing state-sponsored legal aid to the majority indigenous population, who desperately needed legal services.

Thirdly, the racial make-up divided the LSK into two factions, indigenous and non-indigenous. The non-indigenous group had an upper hand in the immediate years of independence, forming what lawyer Paul Mwangi, author of The Black Bar: Corruption and Political Intrigue within Kenya’s Legal Fraternity (2001) framed as a white cartel, which worked to limit indigenous entry into the profession. It had the support of Kenyatta’s Attorney General Charles Njonjo, who supported its quest to retain non-indigenous dominance of the organisation for purposes that we shall get into shortly. The indigenous faction on the other hand was keen on the spoils of independence and hoped to have indigenous members of the legal profession appointed into influential positions in the newly independent state through the Africanisation programme.

Related to the problem of racial make-up, another significant problem, which the LSK faced at independence, was its lack of public support. Unlike most other societal groupings such as the Church, the Labour Movement and the Academia, which had their base in the local indigenous population, the LSK totally lacked an indigenous base. It had made matters worse for itself by not having had a public engagement component and was hence virtually unknown to the majority indigenous Africans. This was as a result of several factors. First, the organisation had failed, throughout its long existence, to develop legal aid schemes for the indigenous public, even within urban areas where customary law was not applicable. Secondly, it confined itself and its membership to Nairobi and Mombasa and little ventured into rural Kenya even after independence. Thirdly, for a long time, it shunned indigenous African legal education, only showing interest later on in the early independence era, a belated interest which legal scholars Ghai and McAuslan dismissed as a cynical attempt to survive the new environment, rather than genuinely develop strong indigenous legal subjectivities.

Externally, as we saw in the first part of this article, this was a time for reversing the oversight provisions in the Independence Constitution, with intense centralization of powers in the presidency, a process led by Njonjo. Obviously, the LSK fell under Njonjo’s gaze, and he exploited the many weaknesses and fissures in the organisation to neuter its capability to restrain the Kenyatta presidency from excesses. In fact, it is safe to say that the LSK, more than any other societal grouping or governmental institution, received most of Njonjo’s oversight-disabling focus. This obviously stemmed from Njonjo’s membership of the organisation, his personal stake in it, as well as the fact that it was the organisation serving a profession he was most familiar with.

Specifically, Njonjo employed at least four measures that ensured the LSK could not quickly evolve into a robust institution of oversight under the Kenyatta regime. First, he played into the racial divide in the organisation by backing Mwangi’s white cartel, helping it to retain the stranglehold it had on the organisation. Most likely, the reason for Njonjo wanting to maintain the LSK in the hands of the non-indigenous group was to ensure it never gained a local base, which could have empowered it into challenging Kenyatta’s excesses. Njonjo must have been aware of the vulnerability of the non-indigenous groups and knew that this would keep them from a robust engagement with the Kenyatta regime.

Secondly, Njonjo in cahoots with the white cartel deliberately suppressed the numbers of indigenous Kenyans who were trained as lawyers. Although the Kenya School of Law had been established in 1964 to improve access to legal education for indigenous Kenyans, by 1968, four years after it was commissioned, Kenya still had only 11 indigenous lawyers, with the bulk, about 224, being Asians while Europeans were 57. Further, between 1963 and 1969, the number of indigenous Kenyans admitted as advocates of the High Court ranged from three to 14 per year. This was due to the control, which the white cartel exercised over not just the Kenya School of Law, but other processes of gaining entry into the legal profession in the country.

Due to the obstacles placed in the way of legal education for indigenous groups, which continued long into the independence era, the University of Dar es Salaam became a major alternative for Kenyans seeking legal training. But even this was not a solution to the problem since the white cartel refused to recognise the University’s law degree and instead insisted on having graduates from the University repeat courses that they had already done. Njonjo himself denigrated indigenous lawyers, dismissing their qualifications as substandard. This state of things prompted Nyandarua North MP JM Kariuki to move an amendment Bill in Parliament on the Advocates Act to allow for the recognition of law degrees from Dar es Salaam, Nairobi and Makerere universities. The new law helped limit the power of the white cartel and thus made it possible for more indigenous lawyers to enter the hitherto tightly controlled legal market.

The third Njonjo measure that curtailed the powers of the LSK and restricted it from playing an oversight role to the Kenyatta regime was to dangle the fruit of Africanisation to LSK’s indigenous faction. This faction was willing to be accommodative of the Kenyatta regime for the sake of gaining positions of influence in the regime under the agenda of Africanisation. Yet even here, Njonjo’s influence ensured a considerably slower process compared to other professional fields, with very few indigenous legal professionals assuming the available positions within the legal field. Granted however, Kenyatta appointed Kitili Mwendwa as Kenya’s first indigenous Chief Justice in 1969, thus somewhat appeasing the indigenous faction and leading it to believe in the Africanisation agenda.

The final Njonjo measure in taming the LSK from robust oversight of the Kenyatta regime was through isolating and punishing those few lawyers who challenged the regime. Two cases stand out, involving lawyers AR Kapila and Byron Georgiadis. When Kapila questioned Njonjo’s influence over the Judiciary as well as his contempt for indigenous lawyers, Njonjo marked him out for punishment. Sure enough, when Kapila returned to the country from a foreign trip and failed to declare a few dollar bills as demanded by the law then, Njonjo had him jailed for 18 months, without the option of a fine, despite it being available under the offence. Kapila was to have the last laugh however, when later on Moi appointed him to lead in gathering evidence against Njonjo in a judicial inquiry which Moi set up to investigate whether Njonjo was the traitor said to have planned to undermine Moi’s government in 1983. As for Georgiadis, he was marked for sanctions for writing at least three op-ed articles in the East African Standard questioning the control the Kenyatta regime exercised over the judiciary. For this, the lawyer was forced to close his law firm.

With all the internal and external challenges facing the LSK, its output in terms of promoting the rule of law and restraining the Kenyatta regime from excesses was unsurprisingly sparse. Save for a brief period just prior to Kenyatta’s death in 1978, LSK’s engagement in actual work of oversight during the entire Kenyatta regime was negligible, with most of its energies sapped by the internal divisions and external obstacles. In addition to the cases of Kapila and Georgiadis recounted above, the only other output on rule of law, which seemed to have come from the LSK during this period was its participation in the 1976 recreation of the Kenyan Judiciary after the collapse of the East African Community. It submitted a petition containing several proposals for strengthening the Kenya Court of Appeal, which was being set up to replace the collapsed East African Court of Appeal.

Actual, significant work on governmental oversight from the LSK was not to happen until the election in 1977 of Krishan Gautama. The election of Gautama was in itself an act of internal triumph of the indigenous faction against the dominance of the non-indigenous ‘white cartel’ faction. The indigenous faction, consisting of lawyers Paul Muite, Timan Njugi, Joseph Masime (later judge), Amos Wako (later AG) and Kamau Kuria carried out a vigorous campaign in support of Gautama, a progressive non-indigenous lawyer of Asian extraction, incidentally against an indigenous lawyer, Richard Kwach, who was viewed as a candidate fronted by non-indigenous interests. With the electoral triumph of the indigenous-backed Gautama, LSK went ahead to commence steps towards asserting itself in Kenyan public life. It did this in several ways.

To begin with, Gautama organised a major conference in Nairobi in April 1978. The conference resulted into several developments containing significant possibilities for the rule of law terrain in the country. First, it helped in building Pan African solidarity between the LSK and other bar associations on the continent through the formation of the African Bar Association (ABA). Kenya’s first indigenous LSK chair Samuel Waruhiu (1970-1972) was elected as ABA’s first secretary-general, with the post of ABA chairperson going to then general secretary of the Nigerian Bar Association, Benson O. Babatunde.

Secondly, through the communique from the conference, LSK, speaking alongside other African bar associations, asserted that its role would be upholding the rule of law, protecting freedoms, supporting legal aid and pursuing the independence of the Judiciary. It took a strong position against detention without trial, terming it as contrary to the rule of law.

Thirdly, the ABA, speaking on behalf of the LSK and other bar associations across Africa, vowed to mobilise the continent’s legal profession to promote rule of law across the continent, vowing to encourage lawyers to fearlessly undertake some of the most unpopular cases. It also vowed to promote an independent legal aid service in Africa and carry out research into legislation affecting individual liberties. Its final commitment was development of a public-facing component, which would help in popularising bar associations among ordinary Africans, and this was to be done mostly through legal aid schemes.

Charles Mugane Njonjo

Besides direct legal issues, Gautama’s era was also characterised by the entry of the LSK into general public welfare, away from legal issues. For instance, it took on Kenyatta regime’s Finance Minister Mwai Kibaki over a Capital Gains Tax (CGT), which the Minister had introduced in June 1978. The Minister justified the tax on the basis that it was meant to address issues of economic inequality and social injustice. The LSK rejected the tax, terming it as punitive and largely against private enterprise. Although the Minister dismissed LSK objections, he nonetheless revised a few aspects of the tax, reducing the amount to be taxed and making it progressive such that those who earned more from capital gains transactions paid more than those who earned less.

It can thus be concluded that under the Jomo Kenyatta regime, the general governance environment was characterized by the concentration of power in the Executive, with the corresponding and deliberate diminishing of the role of both horizontal and vertical restraints on the regime. As part of actors in the vertical restraint terrain, the LSK thus found itself in a constricting environment where its role as an oversight actor was frowned upon by the Executive. Its own closeness to Njonjo as well as its internal racial problems made it unable, for a long time, to function in the role of an oversight actor over the Kenyatta regime.

Towards the end of the regime however, the progressive indigenous faction of the LSK triumphed over the conservative non-indigenous faction. With the triumph, the LSK emerged from the confinement it had been pushed into by the Kenyatta regime and gradually began to engage in regime oversight endeavours. It is the opinion of this writer that given the direction the LSK was taking towards the end of the Kenyatta regime, had the regime lasted a year more or so, at least a lawyer or two would have ended up on the notorious list of the regime’s detainees, besides politicians, academics and other regime radicals.

Writer is studying LSK history for a PhD from Egerton University.

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