By Gilbert Muyumbu
The establishment of the modern state in Kenya on June 1, 1886 was not a process that followed any universally accepted rule of law. It was a foreign imposition on the African populations which then lived in a space that would later be referred to as Kenya. As a foreign imposition, it lacked legitimacy and acceptance among a majority of Africans and thus faced stiff resistance from many of them. In order to overcome the resistance, function as a state and extract cooperation from Africans, it engaged in uncountable excesses and human rights violations.
Postcolonial theorist Achille Mbembe categorises these violations into two. First were those involving the founding of the state, in which the colonial administration imposed itself on indigenous populations through naked force, including assassinating African leaders who stood in its way. A well-documented case of foundational violence at play can be glimpsed in the October 1905 assassination of the Nandi leader Koitalel arap Samoei by the British soldier Richard Meinhertzhagen. Besides ‘foundational violence’, the administration also engaged in ‘maintenance violence’, which meant that even after it had imposed its will and power over Africans, the administration continually used violence to retain its position.
Indeed, historians of the colonial government in Kenya detail its excesses in the political, economic and social realms. Berman, Maxon, Lonsdale and Elkins, for instance, show how within the political arena, the colonial administration curtailed African political freedoms. Perhaps it is in the economic arena where the excesses of the colonial administration were felt most. Berman, Maxon, Zeleza, Kanogo, Tarus and Oculi detail how the administration destroyed African economic initiative and subverted it to the white settler economy. Africans faced heavy taxation, hostile labour ordinances, restrictions of movement in the labour market, deplorable working conditions and poor salaries, unfair distribution of development services and infrastructure and most painful of all, loss of land and livestock.
As for social excesses, Berman and Zeleza highlight, for instance, how the administration tolerated income inequalities between Africans and the non-African races. It also perpetrated ethnic mistrust by using stereotypes to govern and determine the opportunities for different African ethnic groups. Further, it ignited ethno-geographic inequalities by perpetrating differences in access to services in different regions of Kenya.
The excesses of the colonial administration inevitably drew reaction from various quarters, among them the British media, humanitarian and charity organisations, churches and the opposition in the British parliament, as well as emergent institutions of international governance such as the International Labour Organisation (ILO). Of course, the most forceful reaction to the excesses came from Africans themselves. In the works of historian Wanjala Nasong’o, there is extensive detail of how different generations of Africans organised themselves into various social movements in their response to colonisation, starting off from the very first movements of resistance at the beginning of the colonial era such as the Giriama resistance movement led by Mekatilili wa Menza, all the way to feisty labour unions at the dusk of the colonial period, an example of which was Tom Mboya’s Kenya Federation of Labour.
In all the recorded reactions to the excesses of the colonial administration by societal groups in colonial Kenya, the one conspicuous absence is the LSK. History has no record of the LSK addressing itself to the excesses of the colonial government. This is in spite of the facts that, first, the colonial administration engaged in numerous violations of the rights of Africans which naturally demanded that the LSK react in defence of the African population, and secondly, LSK was already in existence and had been legally mandated to ensure that the state respected rights and avoided excesses.
Although the precise year of LSK’s formation is not known, it is thought to have been in existence by at least 1922, when the merger between the Mombasa Law Society and the Nairobi Law Society took place. This means that LSK existed for the bulk of the colonial period, being formed at almost the same time that Kenya was declared a Crown Colony and its governance became a direct responsibility of the British metropolitan powers through a local administration headed by a governor appointed by the British government. This direct governance of Kenya meant more intense control of African populations, which in turn resulted into excesses as the colonial administration imposed its will locally.
The sparse archival record on LSK indicates an organisation which was led by at least 14 chairpersons between 1949 and 1963, consisting of Humphrey Slade (1949-1950), N.S. Mangat (1950-1951), L. Kaplan (1951-1952), J. Sorabjee (1952-1953), C.F. Schermburucker (1953-1954), J.M. Nazareth (1954-1955), Ivor Lean (1955-1956), Chunilal Madan (1956-1957), J.A. Mackie-Robertson (1957-1958), Chanan Singh (1958-1959), J.O. O’Brien Kelly (1959-1960), Chunilal Madan (1960-1961), A.E. Hunter (1961-1962) and Satish Gautama (1962-1963). The record also shows an organisation that was keen on bureaucratic court procedures, for instance, requesting for more time for its members to attend courts summons, and for interpreters and room for defence lawyers to interact with accused persons. As for the larger questions regarding rule of law, and particularly government excesses towards Africans, there was no indication of LSK interest.
Some individual members of the LSK, however, did engage in cases which were aimed at curbing the excesses of the colonial government. Among these included the case of Isher Dass, a lawyer of Indian descent, who offered support to the Ukambani protest against forceful destocking of their livestock in 1938. Dass argued against the colonial policy of destocking on the floor of the LegCo, adding to the Ukamba Members Association’s (UMA) voice against the policy. The second case involved Malkhiat Singh, another lawyer of Indian descent. Along with Chege Kibacia, Singh led a strike on 12, 1947, agitating for better working conditions for Africans. He was subsequently tried and sentenced to jail and exile.
The third case involved CMG Argwings-Kodhek, Kenya’s first indigenous African lawyer. Argwings-Kodhek represented Mau Mau suspects, among them future Kenyan minister Waruru Kanja. His major contribution to rule of law in the colonial era was in his exposure of the Hola massacre, where he used the networks he had built as a student in the UK to provide details of the massacre which the colonial government had suppressed, leading to its debate in the UK parliament and subsequent formation of a public inquest into it.
Outside the LSK, there also were instances of campaigns by African representatives in the LegCo – when it was expanded to accommodate them – to have the legal profession accommodative of African interests. In 1956, WWW Awori demanded for increased uptake of legal education by African students. This was against colonial government policy, which, due to fear of putting legal skills in the hands of Africans, had discouraged legal education for Africans.
The second instance involved Julius Gikonyo Kiano, another African member of the LegCo, who in June 1956, protested over the quality of legal aid which was being offered by lawyers to persons accused of capital offences. This brought out a spirited counter by Chunilal Madan, who then held the position of junior Minister for Commerce and Industry in the colonial government but also doubled up as President of the LSK. His reply amounted to a defence of the lawyers’ professional integrity, dismissing Gikonyo’s concerns.
On the overall, however, the institutional legacy of LSK in restraining the colonial state from excesses was dismal. This is further reinforced by the secondary reflections of Ghai and McAuslin. The two authors trace the existence of lawyers in the country as far back as 1901. At the initial emergence of the legal profession, the colonial government discouraged lawyers from organising themselves into a bar association. The lawyers nevertheless went ahead and organised themselves into the Mombasa and Nairobi Law Societies, the precursors to the LSK.
Ghai and McAuslin argue that prior to the Second World War, much of the interaction between the LSK and the colonial government was confined to development of rules which would guide the profession, including criteria for entry into the profession, which was enacted through the 1906 Legal Practitioners Act (amended in 1911, 1926 and 1929) and the division of the profession into public and private halves, with the public half, mostly consisting of lawyers from Britain joining government service; the private half, mostly consisting of Asians serving the settler clientele. The authors further note that at this stage, lawyers in the country unsuccessfully pushed the colonial government to allow them to organise their profession along the lines of the English Law Society.
The most fundamental change to the legal profession in the colonial era came with the enactment of the Advocates and the Law Society of Kenya Acts of 1949. Among the provisions which came via this fundamental change included establishment of the LSK as an incorporated body, with the responsibility of protecting the rule of law, self-governing powers vested in an LSK council and enhanced powers for the organisation to regulate entry into the legal profession. These provisions were further enhanced in subsequent amendments to the 1949 Act including in 1952, 1957 and 1961. The reforms had the effect of transforming the LSK into the status of a parastatal, with the mandate of promoting the rule of law across the entire country. It was not only self-governing with little interference from the colonial administration, it also managed to have its membership boosted by compelling all lawyers to join it, thus reinforcing its standing as a pressure group with the mandate to speak on behalf of all advocates across Kenya.
Yet, in spite of these enhanced powers, the LSK remained conspicuously silent and did not engage in curbing the excesses of the colonial government. Why was this the case? The answer to this question can be broken down into internal and external reasons. Ghai and McAuslin supply some of the most cogent internal reasons. First, even with the reforms which enhanced its powers, the LSK remained aloof from African legal interests, leaving them to the native tribunals, especially with the passing of the Native Tribunals Act of 1930. Secondly, it ignored any reform of the native tribunals, staying away from both the Bushe and Phillips Commissions of 1933 and 1944 respectively, both of which looked at reforming the native tribunals. Thirdly, majority of LSK’s members were confined to Nairobi and Mombasa, and thus had no interest in the rest of the country. Fourth, the organisation showed little interest in legal aid for the poor, a majority of whom were African.
Even with the amendments to the Advocates Act in 1957 which, for the first time in the colonial era, created a favourable environment for Africans to study law, the LSK remained uninterested in promoting the study of law among Africans. When it eventually showed interest in African legal education towards independence, it was more out of need to survive rather than genuine interest in developing an indigenous component of the legal profession. It was thus an organisation which was not keen on advancing the legal profession as a means of countering government excesses.
For external reasons, it would seem that the one condition which the colonial state introduced, that is, the bifurcation of the legal system into English and customary systems of law made things difficult for LSK members to engage in ways that would have made the legal practice useful in curbing colonial government excesses. The bifurcation meant that Africans were subjected to customary law, whereas settlers and non-African foreigners were subjected to English common law.
The colonial government justified the bifurcation by arguing that the native tribunals were the best means of accessing justice for Africans, and that introducing English law to them would make this difficult, given that English law would demand procedure and thresholds of evidence which Africans were unfamiliar with. The courts were presided over by traditional chiefs under the direct supervision of colonial district officers, thus merging executive and judicial authority. To ensure it remained as simple as possible, the authorities barred lawyers from participating in it, thus barring LSK members from accessing the legal system which Africans were subjected to. The government’s rationale for banning lawyers from the tribunals was that introducing lawyers into them would make their process unnecessarily complex, thus befuddling Africans, instead of facilitating their access to justice. They also did not want the tribunals to become entirely dependent on lawyers, fearing that this would mean justice could only be accessible to Africans with the capacity to hire lawyers.
Without accessing this customary system of law, the LSK could justifiably argue that it lacked both the evidence and platform upon which to question government excesses against African populations. This is conjecture, however, given the fact that there is no record indicating the LSK either resisting the establishment of the native tribunals, complaining of their interference in the country’s adherence to the rule of law or even in their abolition towards the end of colonial rule. What is on record is an organisation which remained silent, even in the glaring presence of massive colonial government excesses against a majority of the country’s population. It is a serious indictment of LSK’s stated commitment to defend the rule of law in Kenya.
— Muyumbu is researching the Law Society of Kenya’s history for a PhD from Egerton University. LSK: Footprints will run for twelve months starting July 2020. Reach him on firstname.lastname@example.org for any feedback on this and any other article in these series.