By Tioko Ekiru Emmanuel
One of the biggest shifts that occurred in Kenya upon the promulgation of the Constitution of Kenya, 2010 was the huge endorsement of our own traditions and ideas. The belief was that the painful pre-2010 era of corruption, torture, human rights abuses, executive highhandedness and formalistic reasoning had been brought to an end. Sadly, the change doesn’t seem as profound or obvious where court room attire is concerned.
Wigs, robes and gowns are objects to be worshipped in many Anglophone countries. Sadly, the attire carries a colonial spectacle which goes against the constitutional tandem and embodiment reflected in Section Three of the Supreme Court Act.
Kenyan courts need to undergo something the founder of the Black Consciousness Movement Steve Biko called an epistemological break – which entails a continuous struggle and a radical re-examination of old concepts, traditions, values and systems of the West in the Africans legal system with a view of replacing them with the African indigenous jurisprudence.
It must be remembered that the prestige and amusing manner with which the Kenyan legal community (judges, advocates and lawyers) embraces these colonial relics goes against the Fanonian theory of decolonisation. In his wisdom, Fanon professes that decolonisation must necessarily entail three things: first, it should be an event that could radically redefine the native being and open it up to the possibility of becoming a human form rather than a thing; secondly, it should entail an historical event in the sense that it could radically redefine native time as the permanent possibility of the emergence of the not yet; finally, he argues, decolonisation is always a violent phenomenon “whose goal is the replacing of a certain ‘species’ of men by another ‘species’ of men.”
Shadows of our oppressors
Across the global community especially in most Anglophone African states, judges, advocates and lawyers are still strongly clothed in the shadow of colonialism. In Common law countries such as the USA, India, Australia, and African states, court attire has generally followed English tradition but with some variations and modifications. It is not any different in Civil Law traditions, neither is it in the International Criminal Court, the International Court of Justice and the UN Tribunals.
Many myths abound as to why we have a standard dressing style for court. One is that the attire is viewed as primary source of command, authority, formality and dignity in the court. Secondly, it is designed to bring originality and distinguish members of the legal profession from other members of society. Moreover, the anonymity helped the judges to be less recognised outside the court thus helping them hide the identity. For example, in the 1980s, a number of violent attacks were made against judges of the family court of Australia. When the family Court was established in 1995, wigs and robes were not worn in order to make court less formal and intimidating, but were introduced following the said attack.
But there are also many reasons wearing wigs, gowns and robes ought to be discouraged. For starters, wigs, gowns and robes are an historical anachronism that serves only to mystify the law and unnecessarily alienate and intimidates the general public. In so doing, it hinders access to justice.
The wigs and gowns also look particularly silly and archaic; they are completely out of place in a modern society. It has been said that wigs and gowns make people view the wearer with respect. But we all know respect is earned and not worn. In a word, wigs and gowns are not necessary to the performance of the law. What is more, they are old fashioned and must certainly be uncomfortable in hot climates.
Walter Khobe in his commentary posited:
“The argument that robes and wigs make the public respect courts is not cogent! Respect for a judge is earned by the quality of reasoning by the judicial officer and the integrity of their conduct. If a judge is a formalistic thinker no number of wigs will bring respect, and earn the admiration… If a judge is concerned about respect and international acclaim, the route to earn that is clear: unquestionable integrity and independence, solid path breaking decisions, and compassionate and humane-emphatic concern for litigants and members of the public.”
The question of court attire is one that is yet to be resolved and settled in the legal and academic discourse. For instance, in a seminar of the international Commission of Jurists held in Nyeri in November 1988, Hon Justice (Rtd) M.M. Kioga presented a paper titled ‘Administration of justice in the Rural Areas’ in which he heavily criticized the mode of attire worn in the Judiciary which he termed un-African, and which “alienated justice from the common people.” He said:
“In Kenya, the mode of attire in court is that which was inherited from colonial judicial practice. Advocates dress in heavy black gowns, stiff white collar and a white strap on top of it. This mode of dress is meant to be worn in all weather and even at the coast where temperatures are very high. Most of us do not know how this mode of dress was initiated or why it was adopted for this country. It is a wonder that the legal profession and the courts have not found it necessary to propose any changes in this most cumbersome mode of dress. All of this supports the racist view that the Africans are better initiators than initiators and better actors’ investors… In the rural areas, the people equate us with Christian priests and bishops who wear long robes and collars in all-weather while they are in church. This is also another example of African mimicry of other peoples’ ideas and mannerisms’.”
On the judges and advocates, Kioga noted:
“Then we come to the advocates’ address to the judges. The address is “My Lord” or “Your Lordship”. To me, that terminology is quite shameful to an African. We have never had any system of lordship in our native systems… Africans do not even know the meaning of that concept. To me, a “Lord” is a rich landed baron in mediaeval England. An African judge is usually a son of a poor subsistence farmer in the countryside or a poor worker in town or in a white man’s institution. To accept being called “Lord” is to be clothed in borrowed attire. When an African leaves the judiciary he is no longer a “Lord”. It is my view that sort of address is absolutely unfit for our judicial system and I would call upon judges and advocates to formulate more appropriate mode of address and attire not only for our judiciary but also for our legal profession.”
Emeritus Chief Justice Dr Willy Mutunga, one of the most celebrated and progressive judges in the post-2010 era, soon after he was appointed in June 2011, embarked on a series of radical reforms and overhaul of the court attire which he viewed as “vestiges of colonialism and neo-colonialism.” In his observation, Mutunga sought to symbolically discard wigs or any form of head gear for judges, except only for Kadhis who administer Islamic law.
In his own words:
“In the Kenyan case, judicial attire and address has been a colonial and neo-colonial imposition… The Kenyan judiciary has not had any occasion before now to see the issues as critical to the administration of justice. The Kenyan people had the occasion to address this issue when they were consulted in crafting of the Bomas draft of the Constitution of Kenya Review Commission… Kenyans called for the change of judicial attire and address.”
Mutunga strongly felt that judges “should no longer be addressed using credentials such as ‘My Lord’ or ‘My Lady’ and should be simply addressed as “Your honour.”
Longing of domination?
Walter Khobe Ochieng, an eminent critical thinker and polished scholar points out that in an unfortunate turn of events, Chief Justice David Maraga, by insisting on the donning of wigs and robes has signalled that he could be one of those who views the pre-2010 Judiciary as the “golden era” and who longs for a return to the “traditions” of the “old “judiciary. He asserts further that Maraga symbolises a group that has failed to embrace Kenya’s Fanonian moment, but only what they view is the golden age in the “old” judiciary – one traited by unimaginable painful horrors!
Post-2010, no judge or advocate should be hung-over on the mental slavery of pre-2010 regimes that almost swept away public confidence from courts. Khobe suggests that the legal community must align itself with the vision of new dispensation as aptly underscored by Dr Godfrey Musila’s observations thus:
“The Constitution of 2010 demands that lawyers and judges re-imagine the law, the role of the law, how to view legal problems and the role of judges. It is one that demands that we learnt in constitutional law and adopt a somewhat radical view of the notion of separation of powers, role of the judge, remedies etc. The question is whether, there is capacity and willingness, if you have been in the judiciary for decades or studied the old Constitutional law, to hit the reset button. But the kind of people you put in higher courts in new democracies matter. In South Africa, from where Kenya imported its Constitution, they stocked the first two constitutional courts with activist lawyers and academics. The first CJ Chaskalson was Mandela’s lawyer at Rivonia in 1956. Albie Sachs J, a celebrated jurist, survived a package of bomb sent by apartheid agents while in Mozambique. Langa CJ worked the trenches defending poor people. They, with their peers, turned South African’s Constitutional court into a theatre of societal transformation and in part of that reason, the South African Constitutional Court stands as a giant among global Constitutional Courts.”
Section three of the Supreme Court Act is crafted in the language of majestic generality and broad innovativeness, which lays down the elements of robust (rich), indigenous, patriotic and progressive jurisprudence. This Act has been drafted with a generous humane attitude which reflects a theory of embracing the Kenyans traditions and aspirations. The Act further requires we bring to an end the imposition of colonial mannerisms and ways of acting in courts. It appeals for a clear embodiment of theoretical foundation of our own legal system and asks how serious we are about developing an African progressive indigenous Jurisprudence.
The Court acknowledged the historical and social circumstances of the people of Kenya in the famous decision of Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others. Therein, Dr Mutunga spoke of a decolonising jurisprudence thus:
“ Although I had categorised the jurisprudence envisaged by the Constitution as robust (rich), patriotic, indigenous and progressive (all these attributes derived from the Constitution itself, and from Section 3 of the Supreme Court Act), perceptions of this decolonizing jurisprudence can be summed up as Social Justice Jurisprudence, or Jurisprudence of Social Justice. Such jurisprudence in all our Courts, and in particular at the Supreme Court, as the apex court in the Republic of Kenya, will ensure that the fundamental and core pillars of our progressive Constitution shall be permanent, irreversible, irrevocable and indestructible –as should also be our democracy”
The Supreme Court Act resonates well with the constitutional tandems reflected in Articles 10, Article 11, Article 20(3), (4), Article 159 and Article 259. In the mind of drafters, these constitutional provisions intended to usher in a legal revolution so as to build a harmonized jurisprudence that reflects Kenyans’ expectations and aspirations.
Steve Biko in his thriller, ‘I write What I Like’ postulated:
The advent of western culture has changed our outlook almost drastically. No more could we run our own affairs. We required to fit in as people tolerated with great restraint in a western type society. We were tolerated simply because our cheap labour is needed. Hence we are judged in terms of standards we are not responsible for. Whenever colonisation sets in with its dominant culture it devours the native culture and leaves behind a bastardised culture that can only thrive at the rate and pace allowed it by the dominant culture. This is what has happened to the African culture.
Ngugi wa Thiong’o, in Decolonising the mind’, agrees. He states, “…decolonisation is about rejecting the assumption that modern west is the central root of African’s consciousness and cultural heritage. It is about rejecting the notion that Africa is merely an extension of the West.”
In sum, Africans must deploy a mental shift to their own traditions and stop professing ‘whiteness’ in every possible aspect! Whiteness has brainwashed our traditions and ideals. It should find its way out.
Wigs and robes serve as a colonial monument and ‘idol worship’ transplanted in the African mind as tool of slavery. They are bastard items that require heavy resistance in this century!