Momentous legal changes since birth of nation

PRAVIN BOWRY} MILESTONES

Tomorrow Kenyans will be celebrating their 50th birthday as a nation and it is important to take a retrospective, an optimistic and legalistic journey to suit the festive mood.

My personal path in the legal profession is a firsthand one. It started in 1966 when the country was a little more than two years old and I was a lad of 17 years. I joined the Kenya School of Law to undertake a five year study of law under articles and then graduated in 1971.

The inevitable starting point then is the setting up in 1964 of the homegrown legal training programme under the watchful vision of the then Attorney-General, Charles Njonjo, prior to which period most legal training was undertaken overseas and all advocates had English or Indian training.

At the time of independence there were only a handful of African lawyers and we now have over ten thousand, at least seventy per cent of them trained locally.  The first African lawyer was Argwings Kodhek who qualified in 1956, and his legacy in he legal profession thrives today.

The appointment of Kitili Mwendwa as the first African Chief Justice in 1968 at the age of 39 years was also a cause of great national pride though he did not last having most interestingly performed his last duty swearing in the likes of the Supreme Court Judge Justice Tunoi, Justice Aganyanya and myself as advocates on 3rd July, 1971.

An extremely profound development was the restructuring of the judicial system under the Magistrates Court Act in 1968 which established the jurisdiction of Magistrate’s Courts. The colonial “African Courts” were abolished and in later years justice travelled all over the country with High Courts and lower courts being set up in far away areas.

By the mid-1970s indigenous Kenyans largely manned the lower courts and the bar, bench and the private sector saw the advent of local legal participation.

1977 saw the establishment of the Court of Appeal of Kenya breaking from the East African Court of Appeal with the Chief Justice now being the head of the Court of Appeal and the High Court.

Over 23 constitutional amendments to the first constitution dotted the constitutional history of the country.

In terms of substantive laws, the 1980 Law of Succession Act streamlined succession laws, the death duty was abolished and later price and exchange controls were lifted.  Foreign ownership of agricultural lands was restricted.

In criminal law, since 2003 capital cases are heard directly in the High Court without preliminary inquiries or committal proceedings and since 2007 without assessors.   Confessions — on which Kenyan and colonial criminal jurisprudence is based — were largely outlawed as was corporal punishment.  Accused were also given by courts the right to statements and exhibits before the hearing.

In 1991 came the liberated approach to bail even in capital cases.

The National Council of law reporting was set up. The law reporting system has become efficient in dissemination of legal material with the publication of the laws of Kenya, and the Kenya Law Reports  which contains rulings, judgments and opinions of the courts.

One can find any statute, legal notice or reported case in the Kenya Law Reports even on the website.

Enter the 2010 Constitution. The list of legal changes is so is baffling that to think that we lived without its provisions is utterly unimaginable.

SCOURGE OF TRIBALISM

The Constitution enumerates the national values and principles of governance and alludes to patriotism, national unity, human dignity, equity, social justice and non-discrimination and protection of the marginalised.

The decentralisation of power through the devolved system of government introduced by the 2010 Constitution may well lead to the attainment of great heights of developments. It has also brought change to the judicial system with the introduction of the highest court in the land - the Supreme Court - the Judicial Service Commission, the National Police Service, Police Oversight Board, the Ombudsman, the divested and independent DPP, National Police Service, County Governments, Environment and Land Court, and Industrial Court (both courts of the same level as the High Court).

Representation and participation of women, youth and the disabled in government organs is now also guaranteed through constitutional provisions.

Dual citizenship, new and expanded fundamental rights, reliance on international treaties, various commissions such as the Human Rights and Equality and Ethics and Anti-Corruption Commission are some other pertinent cornerstones of our new constitution.

A profound development is the setting up of a new National Land Commission and a new land registration system.

The legal fraternity — lawyers, judicial officers, prosecutors and those involved in commerce — need not look to the past, which admittedly was littered with hurdles. Exploitation for personal gain by those in power and abuse of human rights for political reasons, the perversion of the course of justice and scourge of tribalism and nepotism and corruption, are challenges which will need to be addressed in years to come

Fifty long years have gone by, lessons learnt, and aspirations of a nation outlined.

Time to sing the national motto Harambee and march on and as the National Anthem states : “Let justice be our shield and defender”.

The writer is a lawyer.

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