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How Charles Njonjo barred Africanisation of the judiciary

KENYA @ 50
By Njonjo Kihuria | January 8th 2014
Attorney General Charles Njonjo at Kenya High School in 1975. The white bar through Njonjo subsequently kept the black bar out of the profession.

By Njonjo Kihuria

Kenya: Kenya had desperately yearned for an independent Judiciary after many years of manipulation by the colonial government.

And it was a dream come true when after independence, Kenyan Africans were supposed to take over the Judiciary among other state organs. But this process would not be a piece of cake.  It would instead be a slow and painful experience mainly because of the policy of the Jomo Kenyatta government, which sought to put Kenyans in charge of the affairs of their nation, but insisted that such personnel must be professionals.

“There was a deliberate plan to ensure that professionals were well trained to gradually take over the duties that were hitherto performed by the expatriates, but this took time,” narrated lawyer Gibson Kamau Kuria in a recent interview.

Kuria said this was a slow process since before independence, there were no opportunities for Africans to train as professionals apart from the few who came from influential families.

The other reason why it took long to Kenyanise the Judiciary was self interest on the part of the British government and the European and Asian elite who had benefited from the structure of the legal profession. “The training of Kenyan Africans as lawyers meant reduction of the market for legal services that had been utilised by the European and Asian advocates. The latter used all imaginable tricks to impede this training as the colonial judges and advocates sought to protect their careers.

Unfortunately for the ‘black’ bench and bar, the European and Asian lawyers had a zealous defender in the person of the first independent Attorney General, one (Sir) Charles Mugane Njonjo, who constantly spoke ill of Africans and glorified anything white. “Because of the wrong view he held that African Kenyans could not make good lawyers (or anything else), during the period he served as AG from 1963 to 1980, very little progress was made in the Kenyanisation of the Judiciary”.

However, President Kenyatta appointed Kitili Mwendwa as the first African Chief Justice in 1969.

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Lawyer Paul Mwangi in his book, The Black Bar, says of Njonjo, “(because of his upbringing), the only people he could get along with were the whites. The result was that his whole thought process was English-oriented. Notions like Africanisation were sheer nonsense to Njonjo.

“Njonjo willingly became their (the White Bar’s) great defender. They entered into a symbiotic relationship where they relied on Njonjo to use his position to protect them while he used them to expand his power and influence. Eventually, his reason for rejecting Africanisation ceased being one of lack of identity and became one for protecting his own power and influence”.

The white bar through Njonjo subsequently kept the black bar out of the profession and especially from the council of the Law Society of Kenya (LSK). It would not be until 15 years after independence that Africans, who were the majority, would have a majority in the council of the LSK.

Fight for space

 “In the public sector that was also influenced in a big way by views of the AG, there was little progress since both Europeans and Asians remained as magistrates and judges, which meant that the African/Kenyan lawyer was working in a hostile environment 15 years after independence,” reads a section of the book.

The African lawyer was constantly fighting for space and even the role advocates later played in the democratisation of Kenya and for a new constitution arose out of the struggle to better their own lot. “They fought to have the gates opened but in the process realised that the wrong constitutional order was in place.”

From 1963 to 1969, the number of Africans who were being admitted as advocates of the High Court ranged from three to 14 per year because of the structures put in place to ensure that African Kenyans did not enter the profession in big numbers.

“Until 1964/65 when the Kenya School of Law was opened, there was no school to train advocates in Kenya, but even when it became operational, it was still controlled by the LSK who only admitted the number of Africans they believed the council could control”.

The LSK could however not control the law school at the University of Dar Es Salaam, so instead they decided not to recognise the law degree from that university and later even the one from the University of Nairobi. They would require graduates from these universities to repeat some of the courses they had studied.

JM steps in

However in 1974, the late JM Kariuki moved into Parliament an amendment to the Advocates Act that made it possible for law degrees issued by the University of East Africa, Dar Es Salaam and the University of Nairobi, to be accepted as the basic qualification for graduates to become advocates.

 Initially, the policy of the Kenyatta government was that 20 persons train as lawyers annually (in Dar Es Salaam), but in 1970 law faculties were established in Nairobi and Makerere (Uganda) and the number rose to 60. Later, new universities were established and with them came more law faculties and the increase in the number of trained lawyers.

But even as the figures changed dramatically upwards, the economy was still controlled by foreign corporations that had retained lawyers who were either European or Asian and so the African advocate had very few clients.

Many years after independence, there was a determination to retain the Judiciary as it had been and Kuria recalls how in 1975, a group of lawyers including Paul Muite, the late Timan Njugi, the late Judge Masime, Amos Wako and himself frequently held secret meetings in Muite’s house in Karen to strategise on how Africans could take over the bench and bar and especially the LSK.

By 1975, the African lawyers in Kenya had become so apathetic that they did not even bother to vote during the LSK elections. 

“They had lost hope and most just ignored the postal ballots when they were posted. We (a small group of lawyers) had to actively campaign and send people to all the major towns in the country to get the advocates to vote,” says Kuria.

The core group of lawyers succeeded and Africans were elected as a majority in the LSK council, which enabled the election of the ‘progressive’ Asian Krishan Gautama in 1977 to the chairmanship of the LSK against the candidacy of former Judge Richard Kwach, who was getting the support of the European and Asian lawyers.

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