By Ahmednasir Abdullahi, SC
This purpose of this editorial is not to foretell the imminent or premature demise of Justice J.B Ojwang, for I think it is too early to make this inference just because a tribunal has been set up to investigate some alleged misconduct on his part. I must admit, however, that I have never admired Ojwang, either as a scholar or as a judge, for I am yet see a scintilla of virtue I find attractive. But I also don’t loathe him; I have no reason to. That said, as someone who has known the good judge for close to three decades, I thought the reader might be interested in seeing him from a fresh perspective, with the benefit of different insight — that of the objective and officious bystander.
I will neither praise nor condemn him, even as I concur the judge is both in the highlight and twilight of his career, with lots of gas in his tank to boot. He is the third judge of the Supreme Court to have a tribunal investigate his conduct. But because he is a very lucky man who happens to keep the right company, the tribunal investigating him is, shall we say, very different from the one that looked into the conduct of the other two judges.
Justice Ojwang’s tribunal has been designed and staffed with two important goals in mind. First, because Ojwang historically has had close affinity with those who wield State power, he is in the good books of the Jubilee administration. It follows that the tribunal has standing orders to clear him of all the charges he faces, in the shortest time possible. Second, the tribunal has firm instructions to put the Judicial Service Commission (JSC) in its place. The current government has had a very uneasy and frosty relationship with JSC, variously making attempts to disband it but failing on every occasion. The bigger task for the tribunal is to tear into and discredit the JSC.
Ojwang as law school professor and judge is a prolific writer. In the last forty years, he has published a number of books and many law review articles in journals. He is disciplined, focused and writes in good English. But both his scholarly writings and judgments have never been profound or earth-shaking. His literature, whether scholarly or judgment, is neither deep nor philosophically gripping. His dabbles in “legalistic argle-bargle”. He writes long, winding, unimaginative, superficial judgments that capture more the facts of the case and less of sound principles of law. His writings are more of whimpers, for Ojwang, for all his schooling, is incapable of roaring in his judgments. He has no gladiatorial pull to talk about, and he certainly is not a wordsmith. He is famous for pompous generalisation delivered at giddy moments of excessive judicial hubris.
His personality both as a law professor and judge has never been sunny. Grumpiness comes very naturally to him. Indeed, that is his default mode. He gives the impression of a man endlessly aggrieved by any and every mortal he encounters, with responses delivered in a low murmury tone that is as hard to miss in his writings as when he says it.
Whether in class or in court, Ojwang has been an unmitigated disaster, a rigid man with tunnel vision of the law. He will be remembered for saddling Kenya with a fossilized notion of the constitution and the law. He is a judge who refused to get out of that old pit of yesterday
Ojwang is a judge who never confronts his adversaries, for he painfully lacks the grit and the courage to face them, and so he keeps his rage and revulsion filed away deep within himself. His ideas, if his writings can be associated with that appellation, have never been progressive or transformative. He has never espoused sound or consistent school of thought. He is neither liberal nor conservative in his thinking – and probably feels grossly offended by both. At best, Ojwang is reactionary; at worst, he oscillates between narcissism and nihilism. There is nothing exceptional about his thinking; his writings and judgments have the patina of a cantankerous old fossil wrapped neatly about them. Intellectually, Ojwang is utterly dishonest and most of his writings are nothing short of sanctimonious fraud.
As a scholar who came to prominence during the KANU era of President Daniel arap Moi, Ojwang’s writings have remarkable semblance to the party’s propaganda, dressed with a false façade of scholarly writing. In the process, Ojwang become a minor master in the art of pandering himself to the Executive. He is one of many university professors who were respected and revered by KANU – and that is saying a lot!
Ojwang’s most infamous and controversial writing is his doctoral thesis written at University of Cambridge, aspects of which he subsequently published in a number of journals. The central thesis he advanced is that unlike in advanced western democracies, the president of the one-party state in Africa derives legitimate and lawful authority to rule and rein extra-juridically. According to Ojwang, the repository of the extra-juridical power of the president in the one-party state can principally be traced to two distinct matters: the charisma of the leader and his position as head of the single ruling party. Charisma, you ask? Ojwang argues that the president is “naturally endowed” with charisma and on that basis, he can act consistently outside constitutional and legal remits of a given country.
Professor Kivutha Kibwana, writing in the Nairobi Law Monthly issue of March 1989, offered a withering criticism of Ojwang’s obsessive flirtation with dictators and his ‘Charisma theory’ of extra-juridical power. Kibwana was brutal in his deconstruction and subsequent destruction of Ojwang’s flawed thinking, and easily demonstrated the fraudulent foundation of that thesis. In fact, students at the University of Nairobi’s Faculty of Law fondly recall the debate triggered by Kibwana’s critique.
Ojwang was greatly traumatised by the criticism, to which he had no response. Kibwana’s criticism, as we illustrate hereinafter, was a potent and poisonous arrow right into the heart of Ojwang’s persona as a constitutional scholar. First, we must appreciate that this debate came at the height of the struggle for multi-party democracy, and Kibwana’s article unmasked Ojwang to reveal him as a loyalist who cast his lot with the dictatorship of President Moi and the KANU regime. More importantly, Kibwana showed that Ojwang’s thesis advancing a ‘Charisma theory’ was childish nonsense unworthy of a doctoral thesis.
As Kibwana effortlessly destroyed Ojwang’s thesis, it is apt to recapture the arguments he advanced just to show how right he was. First, Kibwana rightly questioned how the very notion of extra-juridical power could be advanced and justified at all. He poses the question how the exercise of power that is outside the remit and realm of a country’s law can be justified as ‘lawful and legitimate’. “Isn’t exercise of power extra-juridically ‘arbitrary and dictatorial?’” wondered Kibwana.
Secondly, Kibwana pours cold water on the very notion of the alleged charisma of the ruler as a justification to act outside the law. How does one surely measure the quality and quantum of charisma a leader poses? Ojwang, of course, knew charisma not to be something quantifiable and was obviously confusing it with the raw and tyrannical powers exercised by dictators, which he confused to be the essence of charisma.
Kibwana’s article unmasked Ojwang to reveal him as a loyalist who cast his lot with the dictatorship of President Moi and the KANU
Third, why exactly did Ojwang pick on the charisma of a leader as the source of power outside the legal regime of the country? Why didn’t he rely on anything else? For instance, what is stop one from substituting charisma with height, weight, strength or the tribe of the leader to justify acting outside the law? Again, if the leader has a bachelors, masters or doctorate degree, can it not be a criterion for charisma? In the same breath, can’t a leader’s level of education in his Biblical or Quranic studies be another substitute for charisma?
Ojwang has a fragile ego and Kibwana, by exposing the shallowness of his thesis, damaged it beyond repair. Kibwana, in a deliberate and well calculated insult, dismissed Ojwang’s thesis as “fuzzy and perhaps hastily conceived so that when it is subjected to analytical rigour it begins to crumble.”
Ojwang is a loner, with very little social skills. He rarely interacts with his students or even his colleagues. But he likes to be loved and adored, especially by students from his ethnic group – he has mentored quite a number of them and exerted much influence in how their careers have panned out. At this juncture, a demonstration would be apt.
The judge supervised Ambrose Weda when the later wrote his dissertation. Weda, while pursuing his bachelor of laws at the University of Nairobi in wrote on extra-juridical powers of the chief executive of the African state; he was supervised by Ojwang. This is the same topic his teacher had written for his doctoral thesis. Any serious scholar would have immediately stopped his student from duplicating his doctoral thesis. To understand why this didn’t happen, you need to understand the twin psyches of Ojwang and Weda.
Weda is a charming court jester who currently plies his trade at the lower echelons of the ruling party, Jubilee. He is an affable and warm person to have around during light moments of life. But he no serious lawyer in the true sense of the word. So when he persuaded Ojwang to supervise him on the topic in question, Weda must have played not only to the fragile ego of his teacher and massaged it but also deployed the full paraphernalia of his clownish antics and impressed Ojwang so that he probably got the only “A” grade in his three years as an undergraduate student.
Ojwang has authored a number of books and two are worth a comment or two. The first is ‘Constitutional Development in Kenya: Institutional Adaptation and Social Change’, published in 1990, and another, in 2013, titled ‘Ascendant judiciary in East Africa: Reconfiguring the Balance’.
The first is obviously an amalgam of Ojwang’s class notes over the years. It is as stale as it is uninspiring. It presents no worthy ideas on constitutional law and lacks in the very basics of any book on the subject. Why the publisher accepted to publish this useless book remains a bewildering mystery. His second book fares even worse. It is a hotchpotch of diverse topics that have no common thread or cipher. It is a collection of the his judgments, again with no thematic affinity. When you consider carefully the scholarly writings of Ojwang, including the two books, you get the distinct impression that the same were written either with promotion in mind or simply because the good judge had ample time on his hands to cobble something together. Theorising on the law, agitating for reforms or pushing and propounding a progressive agenda for the people of Kenya was certainly not his motivation.
In a Supreme Court bereft of heavyweight jurists since the retirement of Dr Willy Mutunga, and dominated by dwarfs, Ojwang has flourished and laid a pretentious and subversive claim to both juristic and intellectual pre-eminence as the leader of the Court. In fact, at the court Ojwang finally discovered ambition! He surreptitiously incorporated the extra-juridical theme he advocated for the Executive into the mainstream thinking of the Supreme Court. In the process, he has persuaded the Court to accept, hook, line and sinker, his thesis that the Supreme Court has imperial jurisdiction, and that all matters, of whatever nature, are within its scope. As part of the court’s lexicon, Ojwang has introduced judicial sloganeering and an affinity for sound bites, which probably remind him of the ‘soothing songs of praise’ of yesteryear KANU.
For a judge, Ojwang is irremissibly extravagant with his diction, and is oblivious of the attendant ramifications. He throws words carelessly and creates havoc in interpretation. At times the blame lies in the judge’s motley agenda of misplaced pretentions and egoistic, vainglorious overreach. Ojwang coined the ruinous phrase that took the court’s jurisdiction to silly heights in the Peter Munya case when he extended the jurisdiction of the court to any matter that has “constitutional derivative”. Of course, all laws in the country have constitutional derivative! Embarrassed by this cart blanche interpretation of the constitution, the Supreme Court walked back on this standard in the Wambora case.
In Lisamula (2014), Ojwang, testing the waters in a separate concurrence judgment, wrote that a challenge on the question of jurisdiction cannot be raised against the Supreme Court. He wrote that the famous and landmark case of Motor Vessel, ‘Lillian S’ “…retain validity for most categories of Kenya’s courts…but…not…for the apex court, the Supreme Court… The court runs in tandem with a generic conferment of jurisdiction, a scenario that is fundamentally alien to the closed-in outlook of earlier politico-legal structures, as depicted in the Motor Vessel ‘Lillian S’ case.”
Subverting the very constitution he swore to adhere to and protect, Ojwang writes: “Thus, in a typical case of dispute resolution, such as the one before us, it would not be right in principle for this court to proceed on the footing that ‘a court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction’. This court has a special role in the constitutional function of dispute settlement, and it stands not on the same platform as other courts of the land”.
It is when one reads judgments such as this that one realizes the lamentable state of the Supreme Court of Kenya. It is a court defined by a constructional power grab.
In the case of ‘Deynes Muriithi v The Law Society of Kenya’, Ojwang forced the majority of the court to accept his theory on jurisdiction, declaring it could hear any matter even where it lacks jurisdiction.
Finally, In Aramat v Lempaka, the Court, again heavily influenced by Ojwang’s judgment in Lisamula (supra), ruled that it is not possible to detract from the Supreme Court’s authority to hear and determine all relevant questions, even where the court lacks jurisdiction.
Heresy of thought
Considering the debauched influence Justice Ojwang has had on the Supreme Court, is it any wonder that the Court’s reputation is in tatters on a number of fronts? Ojwang has been at the forefront of the Court’s agenda and effort to usurp powers it does not have in law. This has to be understood in light of his fascination and flirtation with dictators and strongmen. As a law school professor, he was not in any way engaged in the democratic process of the 1980s and 90s. To the contrary, he was overtly sympathetic of the Moi state – and this only if his scholarly writings are spared the interpretation of being an overt support of the regime. Ojwang has been anti-democratic all his life and it was extremely naive for Kenyans to think he would change at the sunset of his career.
Considering the rigged composition of the tribunal investigating his misconduct, it is obvious that he will be back in the court sooner than his detractors would wish. When he does, he will still have a year before he retires at the mandatory 70 years. Whereas no one denies the industry and effort Ojwang puts in his work, he will be remembered as the single destructive force in the nascent history of the Supreme Court.
Without prodding, he completely destroyed the court with his advancement of extra-juridical powers for the Court. It is a tragedy that the rest of the judges were either not brave enough or intellectually aggrieved to stop. Speaking on my own behalf as a lawyer who has known Ojwang for more than three decades, I cannot wait to see his seat taken by someone honest and truthful to the constitution.
Whether in class or in court, Ojwang has been an unmitigated disaster, a rigid man with tunnel vision of the law. He will be remembered for saddling Kenya with a fossilised notion of the constitution and the law. He is a judge who refused to get out of that old pit of yesterday.