THE LAW SOCIETY OF KENYA THE CITATION FOR ADMISSION INTO THE LAW SOCIETY OF KENYA ROLL OF HONOUR 2016 The Chief Guest Hon. Eugene Wamalwa EGH, Cabinet Secretary, Ministry of Water and Irrigation Special Guests: Mr. Charles Nyachae The Honourable Chief Justice, The President - elect of the LSK; All the Council members elect; The Honourable Judges present; 1
Invited Guests; My Dear Colleagues, Members of the Learned Profession of the Law; Ladies and Gentlemen. This year s nominee for induction into the Law Society of Kenya Roll of Honour was born on Wednesday the 12 th day of August 1953. He was born in a Kenyan colonial district then headed by a Mr Arthur Charles Small. [ See Government Notice No. 688, published in the Official Gazette of 5 th May 1953 at p. 443]. Unlike the colonial District Commissioner, our nominee is anything but small. Our nominee was welcomed into the world 2
by four loud ululations at birth. [In those days, four ululations were the ultimate expression of joy at the birth of a child under the customs and traditions of the Ngaa people. A splendid chronicle of the history, customs and traditions of the Ngaa people is set out in Prof. Jeffrey Fadiman s seminal book When We Began, There Were Witchmen: An Oral History from Mount Kenya (University of California Press 1993)]. Hallmarks of Nominee s Life The life and times of our nominee transcend several epochs, milestones and historic events in the socioeconomic and political 3
evolution of the Kenyan nation state. These include (i) British colonial rule, 1920-1963; (ii) the State of Emergency, 1952-1959; (iii) the Lancaster House Constitutional Conferences, 1960-1963; (iv) Kenya s Political Independence on 12 th December 1963; (v) the Kenyatta I Succession Intrigues 1975-78; (vi) the aborted Military Coup of 1 st August 1982; (vii) the de jure Single Party State era 1982-1991; (viii) the infamous Mlolongo Election of 1988; the Saba Saba Riots, 1990-1991; (ix) the Repeal of section 2A of the 1969 Constitution in 1991; (x) the 2002 General Election; (xi) the Bomas Constitutional Conferences, 2000-2003; (xii) the Post-Election Violence of 2007-2008; (xiii) the 4
Promulgation of the Constitution of Kenya, 2010; and the 2013 General Election. Criteria for Induction into the LSK Roll of Honour Many of us will agree that these epochs, milestones and historic events were characterised by countless social; economic and political upheavals. The main criteria for identifying nominees for induction into the Law Society of Kenya Roll of Honour are exemplary role or contribution to the legal profession and the socioeconomic and political advancement of the Kenyan nation 5
state. The candidate s consistency of conduct, especially during moments of great temptation, trial or upheaval, is a particularly important consideration. This year s nominee, just like the previous years nominees, was scrupulously examined against these criteria. He passed with flying colours, if we may use the common cliché. EDUCATIONAL BACKGROUND This year s nominee for the Law Society of Kenya Roll of Honour received his secondary education at the Prince of Wales School. [ The Prince of Wales School was, until December 1965, 6
the official name of today s Nairobi School]. Our nominee was the House Prefect for Scott House (now Marsabit) and School Prefect at the Nairobi School between 1968 and 1973. Our nominee read law at the University of Nairobi between 1974 and 1977. He was an elected Chairman of the Kenya Law Students Society and founder of the University of Nairobi Law Journal in 1976. PROFESSIONAL LIFE This year s nominee was called to the Bar on 16 th October 1978. The Kenyan Bar was predominantly white at the time, with a few 7
speckles. [ The transmutation of the Kenyan Bar from white to black, and our nominee s contribution to the profession and the expansion of the democratic space in Kenya, are chronicled in Paul Mwangi s book The Black Bar: Corruption and Political Intrigue within Kenya's Legal Fraternity (Oakland Media Services 2001)]. As stated, the life and times of our nominee transcended several epochs and historic events. Our nominee was not a passive bystander during the unfolding of those epochs and historic events. He was at the centre of most of them, making enormous personal sacrifices often at grave risk to his own life, liberty and 8
limb to advance the common good. Our nominee has achieved many remarkable professional feats and accomplishments. The Paul Nakwale Ekai Trial Our nominee first received international acclaim barely three years after admission as an advocate of the High Court of Kenya, when he represented Paul Nakwale Ekai, a young Turkana man who was charged with the murder of the late Joy Adamson. [See Paul Ekai v R [1981] KLR 569. The late Joy Adamson was a world famous wildlife conservationist and author of 9
the best seller Born Free, which was subsequently filmed into the Academy Award winning movie, Born Free ]. The Paul Ekai trial took a dramatic turn when the presiding Judge instructed our nominee to meet him in chambers. Upon reaching the Judge s Chamber, our nominee was arrested on an unspecified charge. He was subsequently released on the intervention of the Prosecutor, Mr. Evan J. Gicheru. [Evan J. Gicheru subsequently became a Judge and Chief Justice of Kenya. He left office pursuant to the transitional provisions of the 2010 constitution]. 10
Our nominee demonstrated great courage in the Paul Ekai trial, which had the personal attention of the President of the Republic. He describes the trial as an eye-opener for him, saying that in it he was able to see "how the law could be misused to serve personal selfish ends." The 1982 Coup The Government of Kenya disbanded the entire Air Force and brought many of its servicemen to trial following the abortive military coup of 1 st August 1982. The Government took many extraordinary steps to prevent our nominee from representing any of the soldiers and officers in the ensuing court martial trials. 11
First, the President of the Republic personally instructed our nominee s father, who was then a Lieutenant Colonel, to advise our nominee not to represent the soldiers and officers. Our nominee had a simple answer to the President s wish; the Cab Rank Rule and his professional oath of office required a lawyer to represent all clients without fear, favour, affection or ill will. Undeterred, the Government appointed our nominee s father as the presiding officer of the Court Martial, with a view to making it either awkward or professionally impossible for our nominee to represent the soldiers and officers. When our nominee refused to flinch, the court martial trial 12
was adjourned for the obvious conflict of interest. Our nominees father was subsequently retired from the military. Undeterred, and in order to ensure that the mutinying soldiers did not receive a fair trial, the Government publicly declared that any lawyer representing them would be treated as their sympathizer. When all these schemes failed to persuade our nominee to refrain from representing the soldiers and officers, the Government tabled a forged document in Parliament claiming that (i) our nominee was one of the coup plotters; and (ii) the rebel soldiers preferred holder of the office of Solicitor General. 13
First Stint at Kamiti (Tramped-up Theft by Servant Charges) While our nominee was busy defending the soldiers and officers at the court martial, the then Attorney General, who coincidentally was the presiding Judge in the Paul Ekai trial, quietly ordered investigations into our nominee s budding professional career. The investigations revealed that our nominee had once issued a cheque that was subsequently dishonoured by his bank. Our nominee was then charged with the offence of theft by agent. The Attorney General personally supervised the prosecution and either compromised or intimidated the trial magistrate to sentence our nominee to five year s imprisonment 14
without the option of a fine. Although the offence for which our nominee had been convicted did not involve any violence or danger to public safety, or public security, he was imprisoned at a maximum security prison. In particular, our nominee was put into Kamiti Maximum Security Prison. More curiously, our nominee was imprisoned at Kamiti s Block E. [Block E was, at all material times, Kamiti Maximum Security Prison s dedicated abode for insane prisoners]. While our nominee was languishing at Kamiti Maximum Security 15
Prison, the Attorney General ordered the striking out of his name from the Roll of Advocates. The Government then pressured a mortgage company to evict our nominee s young family from their house in Ngumo. The mortgage company sold the house without notice, advertisement, auction or any of the other statutory safeguards that governed the exercise of a mortgagee s power of sale. Our nominee spent two years in solitary confinement at Block E of the Kamiti Maximum Suffering Centre. Nay, Kamiti Maximum Security Prison. He was released on the orders of the High Court, which severely criticized the conduct of the trial. He was 16
restored to the Roll by the High court presided over by Justice Erastus Githinji, now a Judge of the Court of Appeal. Many senior lawyers succumbed to state intimidation and refused to represent the 1982 coup suspects in the court martial trials. Our nominee, who was barely four years into the profession at the time, was among the few that did not. He stuck to his professional oath of office even in the face of unrelenting state intimidation and persecution. We would be doing an injustice to the legal profession in Kenya, 17
however, if tonight s citation were to omit the valour of lawyers who selflessly and freely represented and supported our nominee in his countless battles with tyranny and dictatorship. Our nominee enjoyed the support and unrelenting efforts of an indefatigable pro bono legal team throughout his trials and tribulations. That indefatigable pro bono legal team often, almost invariably, included Dr. George Khaminwa, Pheroze Nowrojee, SC and Paul Muite, SC. Journalism & Publishing Our nominee s experiences in the Paul Ekai trial and his own unfair trial and imprisonment inspired him to set up a legal 18
publication. The main objective of the publication was to expose human rights abuses and the manipulation of the law by those in authority. Struggling against great odds, including the lack of starting capital, our nominee launched the publication. The publication quickly carved out a reputation as the main human rights watch in Kenya. It also won our nominee great acclaim, both nationally and internationally. Following the launch of the publication, the Government placed our nominee under round-the-clock surveillance by security intelligence personnel. The political establishment of the day branded our nominee a "subversive element," due to his 19
insistence that the Government ought to respect the constitution in its dealings with its citizens. Return to Kamiti (Detention without Trial & Sedition Charges) In 1990 our nominee was detained without trial during a nationwide crackdown on those who advocated for a return to the multiparty system of Government. The others detained with him were Kenneth Matiba, Raila Odinga, Charles Rubia and Mohamed Ibrahim, now of the Supreme Court. During the same year, the Government banned all the 'past, present and future editions' of our nominee s publication. Our nominee, being a 20
staunch believer in pursuing justice through lawful means, successfully challenged the ban in court. Mr. Justice Frank Shields, the Judge who granted stay orders against the ban of the publication, was soon forced to retire from the judiciary. In March 1991, our nominee was arrested and charged with sedition for articles published in his publication calling for a new constitutional dispensation. He was (i) Severely tortured at the infamous Nyayo House Torture Chambers; subjected to untold inhumane treatment; (ii) Denied bail; and (iii) Returned to the famous E Block of Kamiti Maximum Security Prison all for being an unflinching crusader of the ideals of constitutionalism, 21
democracy, human rights and the rule of law. With his health deteriorating rapidly, our nominee was admitted at the Kenyatta National Hospital on the orders of Mr. Justice Porter, who also directed that he should not be returned to solitary confinement at Kamiti. For the next three and half months, our nominee was chained to a bed at the Kenyatta National Hospital, before being released following widespread appeals from all over the world. Amnesty International arranged for medical attention for our nominee in London following his release. This coincided with an award of the Golden Pen of Freedom by the World Association of 22
Newspaper Publishers. In order to preclude our nominee from receiving the award, the Government confiscated his passport. The World Association of Newspaper Publishers sent its president to Nairobi to personally present the award to our nominee. Public Interest Litigation Right from the time of admission as an advocate, our nominee has taken up many public interest and constitutional law cases. To illustrate, our nominee: 1 Was the first Kenyan to file a presidential election petition against President Daniel Arap Moi; 23
2 Filed a petition to challenge the constitutionality of Section 2A of the repealed Constitution [our nominee was arrested and remanded a day prior to the hearing of the petition, to pave way for Justice Dugdale dismiss the petition for non-attendance]; and 3 successfully challenged the constitutionality of amendments to the Penal Code outlawing the grant of bail in robbery cases Political Life and Parliamentary Service Our nominee was a founding national official of the Forum for 24
Restoration of Democracy (FORD Kenya), the first Official Opposition party in Kenya following the repeal of Section 2A of the 1969 Constitution. He served as an elected Member of Parliament for ten years. During that time, he was one of the most outspoken MPs in the defence of constitutionalism, democracy, human rights and the Rule of Law. He also headed a subcommittee that introduced far reaching reforms to the Standing Orders of Parliament. Our nominee relentlessly urged Parliament and the political class to establish a special tribunal to deal with the crimes committed during the post-election violence associated with the 2007 general election. 25
Retirement from Politics Our nominee retired from active politics in 2013. He continues to play, to this day, a significant role in public interest litigation; human rights advocacy; and the administration of justice in Africa. AWARDS & HONOURS Ladies and Gentlemen, as stated, our nominee is a man of both national and international acclaim. He has previously been honoured and recognized by, inter alia: 26
1 The Government of the Republic of Kenya (The Distinguished Service Medal (DSM), 2008, Nairobi); 2 The World Association of Newspapers and News Publishers (The Golden Pen of Freedom Award, Paris, 1991); 3 Harvard University (Louis Lyons Award for Conscience and Integrity in Journalism, 1991, New York); 4 The International Human Rights Law Group (Human Rights Award, 1991, Washington DC); 5 The International Biographic Centre (the United Kingdom s 2000 Outstanding Scholars of the 20 th Century, 2000, London); and 27
6 Liberal International (Liberal International's Prize of Freedom, 1991, Geneva). CONCLUSION As is evident from tonight s citation, our nominee has led a distinguished life as a (i) Lawyer; (ii) Law maker; (iii) Journalist; (iv) Politician; (v) Human rights activist; (vi) Publisher; (vii) Husband; (viii) Father; and (ix) Kenyan citizen. In view of his accomplishments in these nine roles, we could safely conclude 28
that he has lived the proverbial cat s nine lives, and yet excelled in each of them. Distinguished guests, ladies and gentlemen, for his outstanding contribution and role as an exemplary member of the legal profession, let us with one accord give a thunderous applause to the 2016 Inductee into Law Society of Kenya Roll of Honour, THE HONOURABLE MR GITOBU IMANYARA. THANK YOU 29