The government’s closest ally in oppressing the Kenyan people was the Judiciary. Both through utter incompetence and willful subservience to the Executive, judges and magistrates twisted the law to support the Government and reduced the Judiciary to an ineffective guard of the people’s fundamental liberties. Initially, the problem with the Judiciary was the legacy of its pre-independence experience under colonialism. In the colonial government’s order of business, the Judiciary was placed as one of the executive departments under the Attorney-General. Magistrates were regarded as discharging an executive function and, in many instances, doubled up as district commissioners. They came under the direct control of the provincial commissioners who were regarded as their superiors. In turn, judges came under the direct control of the provincial commissioners who were regarded as their superiors. In turn, judges came under the direct control of the Attorney-General whom the chief justice regarded as his superior.
Thus, the entire judicial department had an executive approach to its duties. It was guided more by the concern over the maintenance of order than the administration of justice. The establishment of the Judiciary as an independent arm of government at independence did not change this executive psyche. The judicial officers continued to regard themselves as part of the executive arm and never appreciated the need to operate independently of the state’s directions.
In a survey it carried out in 1966, the Law Society of Kenya council found that judicial officers were operating as they had done in colonial era. One magistrate was said to be holding his court in camera by expelling all strangers to the proceedings. Another closed the doors to the court and would not allow anyone enter or leave the room once the proceedings had started. Not even advocates were allowed to leave after presenting their cases, whether or not they had other business to attend to or clients to represent before other courts. They were forced to sit until the court session was over. The High Court, the survey stated, “hardly sits for longer than two hours a day, the sittings are short and haphazard with the effect that advocates have to loiter in the court corridors for hours on end, waiting to see if the court might sit.”
The council gave one anecdote in its survey of an officer commanding a police division (OCPD), who wrote to a court bailiff warning him not to execute a distress warrant without “security clearance”. The OCPD was attempting to protect the judgment debtor from the due process of law. Seeking action against the officer for contempt of court, the lawyer for the judgment holder, Mr. Pravin Bowry, wrote 11 letters over a 10 month period to the senior deputy registrar of the High Court. He received no reply.
The Judiciary’s pro-government attitude was to the benefit of the dictatorial regimes of Presidents Kenyatta and Moi and they worked to maintain the status quo. Not only did the two presidents refuse to remove the existing barriers to an independent Judiciary, but they also burdened the Judiciary to keep it dependent on the Government. For instance, the Judiciary was maintained as a department of government, headed by the Attorney-General despite constitutional provisions declaring it independent.
A method used by the Kenyatta regime to maintain a subservient Judiciary was the employment of foreign judges on a contractual basis. Since independence, Britain, through its Overseas Development Administration, had helped Kenya to retain expatriate judges by subsidizing their salaries. These expatriate judges were employed on a two-year contract in which ODA paid two-thirds of the salaries. By threatening not to renew the contracts, the Government could influence the judges’ conduct in the discharge of their functions. It thus became government policy to maintain an expatriate bench. With President Moi, it was very different. The people had become very conscious of their fundamental human rights and were a more demanding citizenry than they had been under President Kenyatta. Mr. Moi himself was a less charismatic leader and found it impossible to maintain loyalty without involving himself in the politics of the day. His prints can thus be found in the Judiciary’s every act of manipulation.
Previously, the Judiciary had been tested only on the issue of detention without trial, whereby it had sided with the Kenyatta government and held that it could not look behind a detention order. Under Mr. Moi the Judiciary was tested on all aspects of human rights under the Constitution. Its reaction can be seen from a review of the bench under two regimes-that of Chief Justices Cecil Henry Ethelwood Miller from Guyana and Allan Winston Robin Hancox from England.
CECIL MILLER: How Moi used the CJ to extend a dictatorial rule
The fact that Justice Miller should never have ascended to the post of Chief Justice, makes it an undeniable truth that by so appointing him, President Moi was merely employing another tool in extending his dictatorial rule. As a person, Chief Justice Miller was an eccentric character and also unstable. He is said to have done such wacky things as lecturing advocate son the virtues of the black race and recounting to them how he ‘dusted’ the Aryan race as a World War II Royal Air Force pilot. He did even wackier things when he turned violent.
For example, he broke the legs of a taxi driver and crippled him with a baseball bat when the poor man dropped his wife home one night and Justice Miller mistook the nature of the transaction. President Moi’s government shielded him from liability for his loony actions and for his other embarrassing drunken frenzies. For that protection, Justice Miller was eternally grateful to the President and did what he could to pay back; as a judge, he was very pro-government.
In 1981, he confessed in a judgment that he interpreted and applied laws in close conformity with government policy. He and Sir James Wicks had in 1979 made such an interpretation of the law and declared that Kenya’s Court of Appeal had no jurisdiction to hear appeals on matters of the enshrined fundamental civil liberties in the constitution. And in 1988, Justice Miller declared that the entire Bill of Rights under the Kenyan Constitution was unenforceable and that no citizen could seek redress in High Court for contravention of his fundamental civil liberties because the Chief Justice (himself) had not made the rules of practice and procedure for constitutional application. This was in spite of the fact that the making of such rules was only permissive and that the LSK had always called for the making of the rules.
Justice Miller’s appointment as Chief Justice in 1986 was very much in line with President Moi’s Machiavellianism. One of the methods used by the President in earning loyalty of public officers was to transform beggars into kings. Mr. Moi often picked a man from the gutters and placed him in an influential position, in which the man would sacrifice his first son to remain. So it was for Chief Justice Miller. The judge not only received total immunity from liability of his actions, which would have supported his discharge from the bench and even subject him to criminal proceedings, but he was also awarded citizenship, a large plantation and a Mercedes-Benz limousine as his official car. The administration of justice in Kenya paid dearly for the favours.
On April 6, 1987, a gentleman called Stephen Mbaraka Karanja bade his wife goodbye and left his Limuru home to visit his lawyers in Nairobi. Although Limuru is only 40 kilometers from the city, Mr. Karanja never found his way back. On April 8, a stranger informed his wife that he had been arrested by CID officers in Nairobi. Mr. Karanja’s wife began a search for her husband and visited the CID headquarters where she made inquiries. But the CID denied having arrested her husband. She then visited the police stations in the city to inquire if her husband had been detained in any of them. The search was fruitless.
After seven weeks of the fruitless search, she instructed a firm of lawyers to apply for a writ of habeas corpus ordering the CID to produce her husband in court. But little did she know that her husband was six weeks dead. The application came up for hearing before Mr. Justice Derek Schofield on May 27, 1987. This was when a State counsel at the Attorney General’s chambers informed the court that Mr. Karanja had been shot dead by CID officers on April12, 1987. According to the state counsel, Mr. Karanja had attempted to escape from custody and was shot as he ran away.
Two months before his death, Mr. Karanja had been arrested by CID officers on the allegation that he had stolen a car. He had been detained for five days. Upon his release, he instructed his lawyers to write to the CID Director to inform him that legal action would be taken for the unlawful detention. Director Noah arap Too replied to the firm that if they knew the type of character Mr. Karanja was, they would not be “pestering” him with “silly threats”.
Mr. Justice Schofield refused to accept the State counsel‘s statement and ordered the CID furnish the court with affidavits saying that Mr. Karanja had been short dead. The CID filed two affidavits. One was by the CID Director, in which he stated that Mr. Karanja had been shot dead in Eldoret, 400 km away from Nairobi, adding that full investigations had been instituted on the matter. The second affidavit was sworn by one of Karanja’s assailants. The police sergeant stated that Mr. Karanja was being investigated for armed robbery to which he had confessed and was in the process of directing CID officers to a cache of firearms in an Eldoret forest area when he attempted to escape. He explained how the CID officers had tried to prevent the escape and had to finally fatally shoot the unarmed man. He also explained how Mr. Karanja’s body was treated thereafter, from the performance of a postmortem examination to burial at the Eldoret municipality cemetery.
Again, Justice Schofield refused to let the matter rest. Terming the police actions as “callous to the extreme”, the judge ordered the exhumation of the body, an independent postmortem and the transfer of the inquest proceedings from Eldoret to Nairobi. After two days of exhumation, Mr. Karanja’s body could not be traced. Neither the cemetery assistants who had buried Mr. Karanja nor the doctor who had performed the postmortem could identify the body at the cemetery.
But before the unsuccessful exhumation, the police and cemetery assistants had exhumed Mr. Karanja’s body, properly identified it and returned it to the grave. The judge therefore took it that the director had refused to comply with his order and he issued a notice to him to appear in court and show cause why he should not be committed to jail for contempt of court. It was Justice Miller who was sent by the President to Justice Schofield to tell him to lay off the case. But the judge would have none of that. He asked the Chief Justice to request the President not to interfere with his judicial duties. If the Chief Justice failed to do so, the judge said he would personally tell the President to lay off the matter.
Justice Miller did not wait for the threat to be made good. On August 11, 1987, he summoned the lawyers from Mr. Karanja’s family and had the file on the matter placed before him. Without any reason to sit as a judge over the matter, he ordered the case be transferred to another judge. He stated in his ruling: “This matter in progress was brought to my attention on August 4, 1987. I thereupon called for and examined the record of proceedings so far, with no settled view as to what may or may not have been potential or actual impressions conveyed to the public. Perhaps it will remain difficult for members of the public who are not legally trained to realise that probable remarks made by judges and magistrates whilst hearing matters are not of necessity part of their considered judgment in the final analysis.”
Karanja’s family lawyer O.T Ngwiri protested:-
Ngwiri: Can the Chief Justice of the Republic of KENYA GIVE ME A Hearing?
Miller: I have made a ruling that this matter is stood over until judges return from vacation.
Ngwiri: Much as I respect that order, I would like to know why this case has been taken over from my Lord Justice Schofield without any formal applications being made, heard and settled.
Miller: That is all for today.
One month later, Mr. Ngwiri made an application to have the hearing restored to Justice Schofield. Instead, Justice Miller transferred the matter to Justice Akilano Akiwumi, who ruled that once it had been stated that Mr. Karanja was dead, the matter could not proceed, arguing that a judge could not order the production of a dead body.
In the meantime, Justice Schofield had in protest resigned from his judicial post and left the country. Before he left, the LSK hosted him in honour of his defence of the independence of the Judiciary. The party was treated by the government as an “act of war”. Solicitor General Teddy Aswani, who was so ill-advised as to be the only high ranking government officer present, was subsequently fired.
But Justice Miller’s nightmare came a year later over a conflict with another High Court judge, Mr. Justice Patrick O’Connor. Justice Miller had several times interfered with matters being handled by the judge in the same fashion as he had with Justice Schofield transferring the matters to pro-government judges. Justice O’Connor did not suffer the practice gladly. He continuously resisted the chief justice until Justice Miller transferred him to an outstation in the provinces. Justice O’Connor defied the transfer order. His stand was that it was the responsibility of the Judicial Service Commission, and not the chief justice, to transfer High Court judges. He therefore brought the matter before the commission for reconsideration. Awaiting the commission’s decision, Justice O’Connor continued to report to his Nairobi office. Justice Miller reacted by directing that Justice O’Connor be allocated no work. Every day Justice O’Connor would present himself in court, but there would be nothing for him to do. Justice Miller, in the meantime, consulted with the President to seek a solution to the standoff. The two reached a perfect agreement–to remove judges’ security of tenure to enable the dismissal of errant ones like Justice Patrick O’Connor. At least, Justice Miller thought this was the true reason for the removal of the security of tenure. He was so busy thinking how he would get back at Justice O’Connor that he probably did not see that President Moi was merely extending his autocratic tentacles to the Judiciary. Hardly had Attorney-General Mathew Guy Muli sat down after securing the rubber-stamping of the Bill removing the security of tenure for him· self and the controller and auditor-general than he was up again with a Bill on judges. Chief Justice Miller could hardly wait. On September 26, 1988, he wrote to Justice O’Connor dismissing him from the Judiciary. The following day he called a press conference to explain his action, referring to Justice O’Connor as “the defiant judge”. This action resulted in a lot of controversy as Justice O’Connor and others contested the chief justice’s competence to dismiss his fellow members of the Judiciary.
Now more fruitful than ever, the symbiotic relationship between Justice Miller and the Government continued. Barely days after he had fired O’Connor, he went out to lunch and had too much to drink. He came back to his office and opened an ever-closed box, which held what he called his “disposal orders”, his will on how his body was to be treated upon his death. This sent a warning signal to his office staff, for the small box was always sealed. He then began to march like a soldier around the chambers, calling out his step and commanding himself through a march drill. The policemen posted outside his office (no other chief justice had ever required an armed guard outside his office) called the commissioner as the situation threatened to get out of hand, which it finally did. Justice Miller emerged from his chambers shouting and punching the air. When one of the policemen attempted to stop him from leaving the building, he punched him and threw him to the ground. He then rushed to the High Court parking lot where he took off his trousers, place done shoe on his head and began to march again. Once in a while he would stop and shout: “Nyayo! Nyayo!”, President Moi’s political slogan. As a crow3~ to gather, and after some press photographers took some of the juiciest shots of the decade, the police boss arrived. He and his men managed to wrestle Justice Miller into a car and took him home. No newspaper, radio or television station ever made a mention of the matter. It was, therefore, with good reason that President Moi retained Justice Miller as head of the Judiciary until his death on September 5,1989 . To give the devil his due, Justice Miller was not an absolute fiend. During his tenure as chief justice he managed to totally Atricanise the Court of Appeal. This singular achievement tuned out to be an acceptance for his conduct, and the head of the appeal court once stated: “They may twaddle about the performance of the honourable chief justice. They may huff and puff but they do not alter the hard fact that he has a mission to Kenyanise the Judiciary.