In less than three years after releasing Kenyatta-era detainees upon assuming power in 1979, Moi had minted his own brand new detainees by May 1982. Incidentally, among Moi’s first detainees was John Khaminwa, an indigenous lawyer and member of the LSK, who was detained in June 1982 for representing Moi’s very first detainee, Stephen Mwangi Muriithi
BY GILBERTY MUYUMBU
In early 1981, President Daniel arap Moi directed that land disputes in the country would henceforth be settled by elders and the Provincial Administration, rather than through the court process. He had decided so, said the President, to save ordinary Kenyans who had scant knowledge of court processes, from being exploited by lawyers.
The announcement caught the LSK by surprise. Its reaction was immediate. It summoned a council meeting and came up with a measured response. Through its chairman, Amos S. Wako, the LSK challenged Moi’s directive on three grounds. First, it felt that as a body whose members would be negatively affected by the directive, it should have at least been consulted before the directive was issued. Secondly, it foresaw that the directive, having placed power in the hands of chiefs, District Officers and District Commissioners, would be prone to abuse, with powerful people in government using it to grab land. Thirdly, it argued that rather than help reduce land disputes, the directive was more likely to open up more disputes, and this would eventually lead to court cases, thereby undercutting the very reason for avoiding court processes in land disputes.
Moi’s reaction was instructive of how he would deal with those who opposed him. He took the matter to a public rally where he excoriated the LSK, branding it a grouping of money-hungry lawyers keen on milking ordinary Kenyans. With finality, he decreed that his directive would stand, in spite of LSK protestations. It became a tense and dangerous standoff. Sensing the danger it was courting, the LSK blinked first. Its chairman, Amos Wako led it in a swift but humble climb-down. To cover the climb-down in some dignity, the Society now announced that it would back the President’s directive, seeing it as a key improvement on the Swynnerton Land Consolidation Plan that now recognized customary land rules, which the Plan in its original formulation had ignored. This was to be the first direct confrontation between Moi and the LSK. Many more confrontations were to follow in years to come.
As we saw in the previous articles recounting the relationship between Kenyatta and the LSK, Kenyatta kept the organisation from developing a local base and maintained it as a colonial relic with no capability as an oversight actor. This gave Kenyatta a distinct privilege, one which Moi, his successor, would not enjoy. By the time Moi ascended to power, the LSK had overcome its internal racial divide and was more focused on the rule of law terrain within the Kenyan governance environment than it had been under the Kenyatta regime. This was to define how it, led by its chairpersons from Krishna Gautama (1977-1979) to Raychelle Omamo (2001-2003), engaged with the regime, resulting in sometimes friendly relations, some other times co-optation, and yet at other times open confrontation.
A happy dawn
The relations between Moi and the LSK began on a positive note. This was underlined by three actions early on during the Moi regime, which were in line with LSK aspirations. First, Moi appointed two new judges, Joseph Otieno Masime and J.M. Gachuki, from amongst the ranks of indigenous African lawyers. The LSK, still keen on the Africanisation of the Judiciary and the legal profession in general, took the appointments as a sign that the Moi regime had a more respectful attitude towards indigenous African lawyers than the preceding Kenyatta regime. Secondly, Moi released all political detainees, which was a demand that LSK had made late in Kenyatta’s era, declaring that detention without trial was a violation of the rule of law. Thirdly, Charles Njonjo, the powerful long-serving Attorney General left the AG’s position, being replaced by James Karugu. Karugu deliberately cultivated relationship terms with the LSK.
Yet as Moi began consolidating power around himself and dealing with perceived opponents, the actions of his regime were ringed with unimaginable impunity, forcing an inevitable souring of relations with the LSK. For instance, less than three years after releasing Kenyatta-era detainees upon assuming power in 1979, Moi had minted his own brand new detainees by May 1982. Incidentally, among Moi’s first detainees was John Khaminwa, an indigenous lawyer and member of the LSK, who was detained in June 1982 for representing Moi’s very first detainee Stephen Mwangi Muriithi, an erstwhile Moi business partner. Although the records are quiet on how the LSK reacted to the detention of Khaminwa, soon however, the stream of actions from the regime which outrightly violated the rule of law were to increase in regularity, making it impossible for the LSK to look the other way.
Due to the enormity of data indicating direct confrontations between Moi and the LSK, these can be usefully organised into three eras of the Moi regime. First are the confrontations in the early era of the regime, running from 1979 to 1990. The second are confrontations in the fight for reintroduction of political pluralism, running between 1990 and 1992. The final set of confrontations come in the era after the re-introduction of political pluralism, running from 1993 to 2002 when Moi finally retired from the Presidency.
Early in Moi’s reign
In the early period of Moi’s regime, several LSK run-ins with the regime stand out. First was over the Legal Notice No. 87 of May 11, 1979. The Notice barred serving LSK council members from contesting in national elections. Due to the notice, two LSK council members, Samuel Kivuiti and J. Miruka-Owuor as well as newly retired LSK chairman Krishna Gautama were barred from contesting in the 1979 General Election. LSK opposed the Notice on the basis that it was going to be applied retrospectively, which was against international legal practice.
The second run-in was in October 1981, where LSK compelled Chief Justice Sir James Wicks to accommodate Muslim interests in the law on succession. The CJ had dismissed Muslim objections to the law, saying it had sufficiently accommodated their interests, although Muslim representatives disagreed with this. Although the LSK did not directly side with the Muslim objections, it organized a workshop where it opened debate on the law by gathering further perspectives on it, including from Muslims, women, the academia and traditionalists.
The next run in was in March 1982, when the LSK courted the suspicion of the Moi regime when it partnered with the National Council of Churches of Kenya (NCCK) to form an institution, the Public Interest Law Institute Limited, to champion public interest causes such as consumer and environmental protection. Suspecting that the institute would be a front for anti-government activities, the regime compelled LSK chairperson, Lee Muthoga, to provide more details on it. Muthoga denied any association of the institute to anti-government activities. This was shortly followed up with the infamous June 1982 amendment to the Constitution, making Kenya a de-jure one-party state. LSK’s reaction to the amendment seems to have been to blame then Minister for Constitutional Affairs Charles Njonjo, compelling Njonjo to come out and defend himself by insisting that it was the President’s prerogative to ‘institute, abolish and terminate offices.’
The differences between the Moi regime and the LSK over land governance were to rear their head again in 1986, when the LSK, alarmed with the rate at which the Commissioner for Lands was compulsorily acquiring land, demanded for a stop to the process. Having witnessed a similar spree in the mining sector where government had rushed to acquire land without requisite legislative backing, LSK feared that there would be a repeat of the same. This would expose the public to loss of land. To curb the mistake, the LSK demanded for reforms in the land sector as well as respect for the rule of law.
Between 1986 and 1989, three acts from the Moi regime placed it in a collision course with the LSK. First was the regime’s proposition to change the country’s electoral system from secret ballot to queue voting. LSK demanded that such a proposition ought to be debated by the larger public, prior to its application. The second fight with the regime was over the amendment of the Constitution to remove security of tenure for horizontal accountability institutions (AG, Auditor-General and Public Service Commission), contained in a Constitution Amendment Bill published in a special issue of the Kenya Gazette of November 14, 1986. Both then outgoing LSK chairman GBM Kariuki and incoming chairman Joe Okwatch were opposed to the move. Okwatch insisted that the Constitution should not be amended as frequently as was happening under the Moi regime, since this was reducing its sacrosanctity.
This prompted a chastisement from Vice President, Dr. Josephat Karanja, who dismissed the LSK and the NCCK for opposing this move, terming the two organisations as ‘anachronistic’ and being of ‘irritating irrelevance.’ A city Kanu official even threatened to lead a group of goons in raiding and razing down the LSK offices. Incidentally, when Karanja was being hounded from office in 1989, the LSK was among the few entities across the country to come to his defense, urging that he ought to be offered an opportunity to defend himself.
The third fight between the regime and the LSK during this period was over the time it took to arraign suspects in court after arrest. The LSK argued that the time taken was too long, thus violating rules of natural justice. This prompted a dismissal from the AG Mathew Guy Muli, who claimed that LSK’s criticism of government was uninformed.
A more ominous confrontation during the period was over attempts by government to review the LSK Act. The LSK opposed the review, prompting Guy Muli to clarify that the actual law under review was the Advocates Act, rather than the LSK Act. According to the AG, the review was meant to weed corrupt and incompetent lawyers out of the LSK. But the LSK countered by suggesting that this did not require amendment to the Advocates Act, given that the existing Act already provided for a disciplinary committee, which dealt with issues of indiscipline among LSK members. To observers, the proposed review of the law establishing the LSK was aimed at punishing LSK for opposing government’s amendments to the Constitution.
As the 90s neared, a pattern had emerged in which LSK voiced its opposition to most government actions, thus establishing itself, along with the NCCK, as alternative voices through which opposition to government actions and policies could be heard. The Moi regime was not pleased with this status and responded to it viciously. This response can be grouped into three main categories.
First, the regime exploited LSK weaknesses, using them to bring the organisation to heel. Indeed, the LSK never lacked for weaknesses, which Moi could draw from. Paul Mwangi in The Black Bar: Corruption and Political Intrigues within Kenya’s Legal Profession outlines some of these weaknesses. The first major weakness was corruption, which Mwangi traces to cartels that emerged among lawyers to rip the insurance industry. These lawyers worked with insiders in the insurance industry, police officers and medical personnel to falsify insurance claims. They also helped robbers to hide their loot by providing them with bank accounts.
This professional misconduct not only drew the ire of Parliament and sections of the media, it also predisposed the legal profession towards further unprofessional conduct at Moi’s urging. Moi happily obliged and co-opted lawyers from within this grouping, using them to pursue regime interests, including generating money for the regime through corruption, defending the regime’s human rights record and leading campaigns to affiliate the LSK to Kanu. Besides, the regime also turned to law, instituting measures ostensibly for fighting corruption and other weaknesses in the profession, but ultimately aimed at silencing the organisation from criticizing it.
The second tactic against the LSK that the Moi regime undertook was employment of a divide-and-rule strategy. Two groups emerged as the relationship between the regime and the LSK evolved over time. The first group consisted of lawyers predisposed towards supporting the regime, and those who were opposed to it. During LSK elections, the regime took advantage to install pro-regime lawyers into the leadership of the organisation. A case in point was the LSK elections of 1989, in which the regime fronted regime-friendly lawyers against anti-regime lawyers such as Paul Muite. Although pro-regime lawyers prevailed in that year’s election under highly controversial circumstances, they had a rough time leading the organisation, as they faced constant opposition from anti-regime lawyers.
The third tactic, which the regime employed against anti-regime lawyers was to keep them away from any lucrative engagements, making sure they never got appointed into government and also instituting punitive taxation measures against the legal profession. In 1985, for instance, when CJ Alfred Simpson retired, LSK chair GBM Kariuki requested Moi to Africanise the position. Moi turned down the request, citing unprofessional conduct from lawyers as reason for refusing to appoint an indigenous African lawyer to the position.
A fourth tactic in Moi’s fight against lawyers involved deployment of state law officers and the special branch against members of the LSK. Save for the short stint of James Karugu, the AGs who served Moi, from Njonjo to Wako, were outrightly hostile to the LSK. Besides state law officers, the regime also deployed Special Branch personnel to trail prominent anti-regime lawyers such as Paul Muite.
A fifth tactic in Moi’s arsenal against the LSK involved use of fake news and propaganda against the Society. In at least one public rally on Jamhuri Day of 1989, Moi threatened to use physical violence against those LSK members opposed to his government. He branded them as unpatriotic and claimed they were puppets of foreign powers. In a special session of Parliament held on 10 July 1990 to condemn the first Saba Saba rally on 7 July 1990, Parliament, through Assistant Minister John Keen, listed at least 5 members of the LSK as among cabinet ministers in the alternative government which the regime claimed the Opposition had clandestinely set up to replace the Moi government. These were GBM Kariuki (Attorney-General), Kamau Kuria (Chief Justice), John Khaminwa (Deputy Public Prosecutor), Paul Muite (Head of Civil Service) and Gitobu Imanyara (Solicitor-General).
When everything failed, the Moi regime resorted to outright detention and exiling of anti-regime lawyers. As already stated, Moi’s first LSK detainee was John Khaminwa, who was detained in June 1982. As the years rolled by, other LSK members followed Khaminwa in getting detained. These included Gitobu Imanyara, Muhamed Ibrahim, Rumba Kinuthia, Wanyiri Kihoro, Jean Marie Seroney, future Chief Justice Willy Mutunga, Lenny Gacheche, Ng’ang’a Thiong’o and Mirugi Kariuki. James Orengo, who as a Member of Parliament had been marked out as one of the ‘Seven Bearded Sisters’ by Njonjo, escaped detention by going into exile in Tanzania. Other lawyers who just avoided detention either by escaping into exile or because cases against them were not concluded included Kiraitu Murungi, Japheth Shamalla, Paul Muite, Beatrice Nduta, Martha Karua, GBM Kariuki, Pheroze Nowrojee, Mbuthi Gathenji and Gibson Kamau Kuria.
Fight for multiparty democracy
However, as the campaign for re-introduction of political pluralism began in earnest in early 1990, regime tactics against LSK were not enough to rein in members from participating actively in the campaign. There were three main ways in which the LSK participated in the campaign. First, LSK members were active in defending pro-reform detainees, with Kiraitu Murungi and Kamau Kuria defending Raila Odinga, while Paul Muite represented Kenneth Matiba. Other lawyers who offered services to detainees included John Khaminwa, Gitobu Imanyara, James Orengo and Martha Karua.
Secondly, LSK members directly participated in the multi-party campaigns. Muite and Kamau Kuria were for instance the authors behind the statement read by Kenneth Matiba and Charles Rubia in 1990, setting stage for multi-party campaign. Thirdly, LSK members mobilised external support to restrain the Moi regime. In at least one instance, the LSK wrote to the UK Home Secretary Edward Hurd, demanding that the UK cuts aid to the Kenyan judiciary, which it said had been reduced into an extension of the Moi Executive. The UK government refused to defund the Judiciary however, mostly because Moi remained a key Western ally during the Cold War.
After repeal of Section 2(a)
Even after the reintroduction of political pluralism and subsequent multi-party elections between 1992 and 2002, the LSK remained a major force for restraining the Moi government. Although the regime still retained the power to torment political opponents, using State Law Office and security agencies against regime critics, LSK members vigorously took on Moi. For instance, during the treason and incitement charges against two central Kenya MPs who AG Wako had charged for utterances made in a rally in Meru in 1998, at least six LSK members, among them Kamau Kuria, Murungi, Karua, Orengo, Muite and Samuel Gachora took on the case, putting pressure on Wako to drop the charges. LSK members had also entrenched themselves in important institutions across the country, particularly Parliament, from where they could easily oppose Moi.
The relationship between Moi and the LSK thus evolved from one of accommodation in the very early years of the Moi regime, into one of open hostility towards its end, such that by the end of the regime in late 2002, the LSK openly associated itself with the Opposition that was poised to take over from Moi. It can be safely deduced that in the 24-year period through which the relationship between Moi and the LSK developed, there emerged three types of lawyers that are indicative of the Moi legacy within the legal profession in Kenya.
The first lot consisted of pro-regime lawyers who deployed their legal knowledge in the service of the Moi regime, thus entrenching bad governance and disregard for rule of law.
The second lot consisted of liberal lawyers with a strong commitment to expansion of the democratic space and the liberal order, and who fought for the liberal freedoms that the Moi regime had muzzled. This group was somewhat appeased when Moi left power and they were able to get into power either as MPs, heads of commissions and independent offices or representatives of high-profile clients. The third lot formed the radical/Marxist lawyers who, although they worked with the liberal group in fighting the Moi regime, they were ideologically committed to more than just liberal ideals. Each of these three categories has played a role and continue to shape the legal landscape of the country, giving it a mix of liberal and pro-poor ideals but also the bad governance and disregard for rule of law which have characterised the post-Moi era.
In all, it can be concluded that although Moi anointed himself a sort of Mecca to which all Kenyan institutions had to direct their attention and worship, this was somehow countered by an energised LSK, which pulled itself out of the elitist orientation of the colonial and Jomo Kenyatta eras. Indeed, the LSK stood up for the rule of law when the Moi regime took it to the dogs.
Writer is studying LSK history for a PhD from Egerton University.