When the inaugural Supreme Court of Kenya was ordained in June 2011, the consensus within the legal fraternity was that the Court and the Judiciary at large got the best captain in Dr. Willy Mutunga as the president of the apex court, chair of the Judicial Service Commission (JSC), and Chief Justice.
Equally, there was a concurrence of opinion within the legal circles that Senior Counsel (SC) Pheroze Nowrojee would also have been a good, if not better, candidate for the office.
At the time, Kenya was striving to break with her horrible past in the justice system. Since independence, the political class had had a stranglehold on, mainly, the Judiciary and, by extension, the entire chain in the Justice system, including the Police Force and the State Law Office. The Executive, which controlled the Judiciary’s budget, appointed and dismissed Judges through roadside declarations. The police arrested and prosecuted political dissidents on trumped-up charges, and the courts were always on standby, even sitting past official time, to hear the cases, convict, and sentence.
Radical Surgery
The stench of corruption within the corridors of the judiciary and the entire justice system became unbearable. Previous attempts to clean up the court system, minus an overhaul of the Constitution, had failed miserably.
In the 2002 political transition from President Daniel arap Moi to President Mwai Kibaki, for instance, the new government, in what was dubbed ‘Radical Surgery’, attempted to clean up the Judiciary to no avail. A report of the ‘Integrity and Anti-Corruption Committee of the Judiciary in Kenya’ chaired by Justice Aaron Ringera, which implemented the Radical Surgery policy, implicated five out of nine Court of Appeal justices, 18 out of 36 High Court justices, and 82 out of 254 magistrates.
Even though the Government refused to release the Report, the impugned judicial officers were informed of the allegations against them. The Government ordered the publication of their names and issued them a two-week ultimatum to either resign or be dismissed. Many resigned. Others retired. A few mounted legal challenges, to which a tribunal was set up to hear their cases. By 2004, only one case had been resolved, with the acquittal and reinstatement of Justice Philip Nyamu Waki.
President Kibaki appointed 28 judges unprocedurally to replace those dismissed, raising questions about whether the appointments responded to political and tribal interests and whether the radical surgery had achieved its purpose.
The excitement, therefore, around the whole question of the inaugural Supreme Court, its president, a new Chief Justice, and a powerfully reconstituted JSC was in response to a unique opportunity by the Constitution of Kenya 2010 to re-engineer the Judiciary and, by extension, the whole justice system in an unprecedented way.
In June 2011, the interviews of the inaugural justices of the Supreme Court and its president, who also doubled as Chief Justice and chair of the JSC, were televised live. Dr Willy Mutunga was selected, vetted, and appointed as the first president of the Court and first Chief Justice of the Republic of Kenya post-2010 Constitution. Together with him, six other judges were appointed to the Court, including Dr. Nancy Barasa as vice president of the Court and Deputy Chief Justice, and Philip Tanui, Prof. Jackton Ojwang, Mohammed Ibrahim, Dr. Smokin Wanjala, and Njoki Ndung’u.
In those times, when Kenya was deeply involved in turning the page in its justice system, when the country put everything into selecting the best men and women to resuscitate its Judiciary, the legal fraternity thought highly of SC Pheroze Nowrojee as being among the few who could spearhead that assignment.
“Were it not for the age factor, he (SC Pheroze Nowrojee) would have made the best Chief Justice of Kenya. His depth in legal philosophy, his long-standing international experience in legal practice, and his temperament put him on an unrivaled pedestal,” said one of the successful candidates for the position of justice of the inaugural Supreme Court and a former student of Mr Nowrojee, before the June 2011 interviews.
Presidential Election Petition 1 of 2017
The live interviews of the justices of the inaugural Supreme Court of Kenya in June 2011 captured the psyche of many Kenyans. It drew the attention of members of the public to the goings on in the courts henceforth. Even though SC Nowrojee, having been past the retirement age of a judge in Kenya, of 70 years, did not apply for the position of the Chief Justice of the Republic of Kenya and president of the Supreme Court, I have keenly followed him ever since.
His opinion pieces on legal matters in The Star daily over the years, as simple as the man himself, have always helped educate and simplify legal concepts for law students and the public. You would never tell the level of his legal milestones in the manner of his writing.
It was, however, the live proceedings of the Presidential Election Petition 1 of 2017, Odinga & another v IEBC & 2 others that showcased SC Nowrojee’s litigation prowess to the non-legal fraternity.
As one of the lead counsels on the petitioner’s team, SC Nowrojee, in a 40min submission, tied up the loose ends of the petitioner’s case in a compelling submission that many believed won the case and led the Supreme Court, in a first on the African Continent, to nullify a presidential election. He respectfully countered and dispelled, blow by blow, the assertions of the respondents’ counsels with the help of the Constitution, statutes, and case law.
The advocate of the High Court of Kenya is a constitutional office just like that of the Chief Justice or the Attorney General. The dominant feature of the demand for a fair trial is, therefore, inconceivable without the advocate’s participation
You could tell the level of respect that he commands among his peers from whom he commanded attention from both the bench and the bar while on the floor. His likable personality, his humility, his commanding knowledge of the voting process and the anchoring pieces of legislation, his deep understanding of the philosophy of the law and its application on the ensuing subject, and, of course, his measured sense of humour, all fused and discharged artistically, turned the tide in favour of his client.
Throughout his legal career, which spans over 60 years, Pheroze Nowrojee, now in his mid-80s, has strode the corridors of justice like a colossus. As a litigation lawyer, he represented all and sundry. He has been at the forefront of the fight for human rights and expanded political and constitutional reforms.
The advocate’s place in good governance and the rule of law
A teacher, mentor, human and constitutional rights lawyer, poet, and writer, SC Pheroze Nowrojee was the keynote speaker at the Law Society of Kenya Annual Conference 2024 in August in Diani, Kwale, where he received a standing ovation.
SC Allen Waiyaki Gichuhi, former president of the LSK, introduced him to an enthusiastic congregation of learned friends as “the man, the legend, and the colossus in our legal profession.”
SC Pheroze Nowrojee’s milestones, Mr Gichuhi said, include a Master of Laws from Yale University. Advocate of the High Court of Kenya, Tanzania, and Zanzibar; an Inductee of the Law Society of Kenya Roll of Honour; Jurist of the Year of the International Community of Jurists; Ambassador, National Cohesion and Integration Commission; Vice Chair, Ufungamano People’s Commission on Constitutional Reforms; and Member, Committee on Public Violence, Kenya National Human Rights Commission.
He began his address by revealing his family’s long and close ties with the LSK. “I am honored to have been invited to present this keynote address… It is all the more meaningful for me because of the very long and close ties that my family has had with the LSK. Madam President, I thank you. My father was your predecessor, having been the President of the Society in 1968 and 69. His name is on the scroll of the presidency in our headquarters. He had been a member of the LSK from 1949 to 1969. And I have been a member of the LSK since 1967.”
He asked the audience to stand up for a moment of silence in honor of the young people who died in the Gen Z protests against the Government’s economic policies that have skyrocketed the cost of living.
“We have already done that but cannot pay this generation enough tribute. And we also thank them for their fearless, eloquent, and righteous services and sacrifices,” he said.
Titled ‘The Advocate’s Place in Good Governance and the Rule of Law’, SC Nowrojee’s address related to the current governance upheavals in the country. It focused on the role of the advocate in fostering good governance. He said that one of the ways to define the place of the advocate in good governance is to study the advocate’s responses to bad governance and the denial of the rule of law and its rights and freedoms. How, he posed, should an advocate respond to bad governance, especially one that puts on the face of good governance?
History’s most famous such response by an advocate, he said, was that of Nelson Mandela, who was often asked in the numerous court proceedings that he faced why he opposed apartheid and to which he replied thus; “I regard it as a duty, which I owe not just to my people, but also to my profession, to the practice of law… and to justice for all mankind… I believe in taking up a stand against this injustice; I am upholding the dignity of what should be an honorable profession.”
That response, SC Nowrojee said, is key because Mr Mandela focused on upholding the dignity of the honorable profession and not just of the freedom struggle or the ANC (African National Congress), South Africa’s independence party.
“There is, therefore, such a thing as the dignity of our profession in standing up to oppression, lawlessness, and breach of the rule of law,” he said, adding that the law as should be applied, as has been developed and especially as is written and designed by the nationalist government, is, in his view, immoral and unjust.
“Our conscience dictates that we must protest against it, that we must oppose it, and that we must attempt to alter it. Those are the places in our profession when faced with this type of governance. We must act as our profession expects us, as it instructs us, and as it inspires us… It is important that we define ourselves as deliverers of justice because justice keeps rulers legitimate,” he said.
Secondly, he said, our statutes require the advocate’s response to correct the course of our State. Section 4 (e) of the LSK Act, he said, states that members of the Society should protect and assist the public in all matters touching or ancillary or incidental to the law. He called on members to applaud the Society’s president as a symbol of appreciation.
“You speak not just for us (LSK members) but for all Kenyans. You speak eloquently, and you speak with complete command of the law. We could not ask for more,” he said to Ms. Faith Odhiambo, the president of the LSK.
The Senior Counsel also challenged the members of the Society to realize that the Advocate of the High Court of Kenya is a constitutional office just as that of the Chief Justice or the Attorney General, and, therefore, the dominant feature of the demand for a fair trial is inconceivable without the advocate’s participation.
He said the advocate’s presence in the trial process curbs arrogant police and cabinet secretaries who would announce illegal restrictions on the protestors. The advocate, he said, is there to counter that even through small initiatives like letters to the editor, articles in law journals, and statements to political leadership. The purpose, he said, is to sow doubt in members of the public who recklessly follow politicians who he said have not set out a national goal during the protests other than decrying damage to property and calling protesters and anarchists. He commended the Society’s role in protecting civil liberties during the Gen Z protests.
SC Nowrojee equated the country’s current political situation to what George Orwell called “universal deceit” in his book Nineteen Eighty-Four. “In times of universal deceit, telling the truth is a revolutionary act,” he quoted the writer in relation to what members of the bar association should do in times of repression.
“We say that the advocates of this Law Society, and the Law Society itself have by their own courageous, compassionate, and determined actions shown the correct place of the advocate in good governance and democracy, defending in the most important time, the sovereign people of Kenya when the government becomes bad, and democracy is being assaulted for personal gain. That is where the Law Society stands,” he concluded, and launched the latest book in his stable, Practicing an Honest Profession, receiving a standing ovation.