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Judges and lawyers donning wigs, robes are out of place

By Makau Mutua | Updated Tue, May 16th 2017 at 13:11 GMT +3

Today I wade into complex territory. That’s because dress is one of the most controversial arenas to interrogate. Think of the sexual revolution of the last 50 years, and you will know what I mean.

What people wear – if anything at all, and in what circumstances – has dramatically changed. Even how people wear their hair – a part of dress, one might argue – has undergone revolutions. What’s not deniable is that dress isn’t simply a matter of modesty. In fact, in many cases, the law regulates what one can wear, and how. It’s illegal in many societies, for example, to walk down the street stark naked, unless one is in a nudist colony. Which brings me to judges, robes and wigs.

There’s no question that Kenya’s legal profession is tortured by the question of dress. What should lawyers and judges wear as official business dress? Former Chief Justice Willy Mutunga was the first head of the Judiciary to frontally address this question. He changed the dress code for judges and lawyers. He allowed a more open and dynamic code of dress.

He repudiated the judicial colonial legacy garbs that were the hallmarks of judges and “learned” colleagues. Gone were the mandatory wigs and scarecrow robes of judges. So were the archaic feudal – I might add comical – titles underlined by “my lord.” Nothing is stranger than one black African addressing another as “my lord” or “my lady” under the canopy of Equator.

The Kenyan legal profession isn’t the first to conflate form with substance, or the dignity of office with garb.

The most powerful human on the planet – then President Barack Hussein Obama of the US – didn’t wear a robe. Nor did he have an English feudal title. I can’t recall whether the Queen of England attempted to knight him, but you can be sure Mr Obama will never use the title “sir” even if that anachronistic and obsolete prefix is given to him. Incidentally, that’s how the British shore up their sagging legacy by purporting to knight famous foreigners. If Mr Obama wouldn’t embrace a feudal title, can you tell me why one black African would address another as “my lord” under the glare of the equatorial sun?

A history lesson is in order. Under the age of natural law in Europe, the king or queen, ruled by “divine right.” Law was God-given and therefore the queen – anointed by God – was simply the instrument of His (God’s) will. That’s why laws and kings were infallible. If you remember your history, the Pope was more powerful than the kings of Christian Europe. But society has evolved, as has our construction of the law.

Today, most societies are secular and religion is a matter of choice and conscience, not a hammer of the state against the people. We know that law is man-made, not divine, or God-given. So, the trappings of the divine – under which the state and the legal profession hid – should be history.

Upward mobility

In feudal, oppressive and unequal Europe, one’s station in life was bound up with garb, diction, title, pedigree and bearing. Society was literally stacked up. It was a pyramid. You stayed where you were born – literally and figuratively. There was no upward mobility. The law and other state institutions instrumentalised social order.

Judges and lawyers were defenders of the oppressive social order. They were the instruments of injustice, not justice. A courtroom was a place of terror and calumny. Judges were dressed to scare and intimidate.

In Napoleon’s France, for example, judges dressed in a bright monster-like garb that rendered them other-worldly. They entered the courtroom like deities whereupon litigants and “little people” genuflected, curtsied, and supplicated. I once witnessed a similar horrific scene in Mobutu’s Zaire.

Now, the wig. Every time I see a wig on a Kenyan judge or lawyer, I think of an American Halloween costume.

The wig, coupled with the scarecrow rob, looks satanic and cult-like. It’s a comical attempt to mimic the papal or priestly dress. Methinks it’s meant to give the judge a “divine” or “godly” aura. The idea is to scare the living daylights out of the peasants and workers – the majority of litigants who appear before Kenyan courts. Add a raised dais where the judges sit – looking down on, and dominating, litigants – and you wonder what justice has got to do with it. Even Britain got rid of the wig. In America, judges wear a simple black rob.

Let’s analogise judicial garb to Robert Mugabe’s view of gay people. Mr Mugabe believes gays commit sin against God and African culture. I guess he didn’t get the memo. Europeans, who forced Christianity on him, no longer prohibit homosexuality. Which makes you wonder why Kenyan judges wear wigs when the British have cast it off?

-The writer is SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of KHRC.

@makaumutua