The Time Has Come....

"Style is the dress of thought, a modest dress, neat, but not gaudy, will true critics please" - Samuel Wesley

As I was trawling on the literature about the late Lord Denning ( Among other numerous achievements, he wrote such books as The Discipline of Law, The Due Process, The Family Story, What Next in the Law, The Closing Chapter, landmarks in the Law, among others), I stumbled upon a quote from a poem he had sprinkled in his judgment of what could be rightly put as his last case. Well, it was the case of George Mitchell Ltd v Finney Lock Seeds Ltd  (1983) 2 AII E.R. 737. The case involved cabbages! ( That is the much I can disclose, please be kind enough to follow up with the legal principle)

He wrote:

"The time has come, the walrus said, to talk of many things- not of cabbages and kings, but of cabbages and whatnots"

Where one could expect some legal jargon, Denning could plainly set off in plain English. His first sentences, like this one, remain powerful.


The rest of the poem The Walrus and the Carpenter by Lewis Carroll is an interesting read. The actual stanza reads as thus:

"Time has come," the Walrus said, " to talk of many things: of shoes-and-ships-and-sealing-wax-Of cabbages-and kings- And why the sea is boiling hot- And whether pigs have wings"

I find the stanza exhilarating especially when Lord Denning used it in a Judgment.

I took time to understand the poem. There is an interesting discussion of it in my favourite blog called Wondering Minstrels that you can click here.

Similarly, another equally good read is  Glory of Garden by Rudyard Kipling. One of the stanzas reads:

There's not a pair of legs so thin, there's not a head so thick/ There's not a hand so weak and white, nor yet a heart so sick/ But it can find some needful job that's crying to be done, / For the Glory of the Garden glorifieth every one.

The last stanza reads:

Oh, Adam was a gardener, and God who made him sees/ That half a proper gardener's work is done upon his knees, / So when your work is finished, you can wash your hand and pray/ For the Glory of the Garden, that it may not pass away!/ And the Glory of the Garden it shall never pass away!

 I think the gist of what Rudyard is urging is that we are designed to accomplish a given task because "there is not a pair of legs so thin, there's not a head so thick...it can find some needful job".

Lord Denning quoted this good poem and like him, I totally love the last stanza..."..So when your work is finished, you can wash your hand and pray...".

Kiswahili For Lawyers: Lesson #2

Good Morning Class. Sorry for being late. I woke up in the morning and discovered that my gate had been stolen. Apparently the watchman had slept on his job. Don't be surprised. Gates can be stolen.


Er, in our previous class I had introduced to you our Kiswahili class. We said that criminology is elimu jinai, a criminal act is kosa la jinai and so many other things. ( The one whose phone is ringing, who do you think you are? We also had phones which were almost half the size of an inverter, foko jembe wewe!)

Before we were rudely interrupted, I was saying that my gate was stolen? Ok. I had said that. Now to serious matters.


In your lingual arsenal today, I would drum 10 new Kiswahili terms which would be of interest to you. Or disinterest. I really don't care.

1. Citation-- samasi; kuitwa shaurini, mtajo, kutaja.


2. High court-- mahakama kuu ( Onyango, did I hear you say you already know that? Stop getting in the way of other people's learning. Can you tell me what debeture is then?)

3. Debenture--dhamana ya ushirika.

4. Criminal procedure-- taratibu za kesi ya jinai

5. Convey-- hawilisha, fikisha, chukua

( Who is that asking the meaning of hawilisha? Hawilisha is hawilisha as in hawilisha this way, this way, hawilisha. Understood? Anyway, many are called to the legal profession, few are chosen.)

6. Commissioner for oaths-- kamishna wa kiapo

7. Collateral evidence-- ushahidi wa nyongeza

8. Affidavit--hati ya kiapo

9. Actus reus-- kitendo cha kihalifu

10. Accomplice-- mshiriki jinai

We still have time. We could continue but first any questions up to there?

( A question is asked: Sir, in your own estimation, to what extent is our learning of this language relevant in our application of law?

Response: Were you in our previous class? No? Where were you? I answered that question. Now that you have asked the question can I ask you a question? what are actio in rem and actio in personam? You don't know? You don't know? How is it possible that you don't know? You could ask me that question after waking me up at midnight yet still I will answer you. No wonder the suicide cases of lecturers have gone up. You are the causes!)


Let's meet in the next class.

Essay: Silence

See how nature- trees, flowers, grass- grows in silence; see the stars, the moon and the sun, how they move in silence...we need silence to be able to touch souls--Mother Teresa of Calcutta

The asses bray, beetles drone, birds twitter, coyotes yelp and bulls bellow. We wake up to screech of brakes, gunshots and sleep with the noise of car horns and rushing humanity. The world has become noisy, its decibel levels ever growing high and our ears can't keep up with them.

Yet even when such absolute tranquility is almost impossible, our minds are also filled with their 'noises': dialogues which can't flow or come to an end, constant monologues with forces of life and our artistic voices, noises of unfinished arguments, noises upon noises of varied thoughts, philosophies, views and perceptions.

Ralph Waldo Emerson writes:

Let us be silent, that we may hear the whispers of the gods

Mahatma Gandhi opines:

In the attitude of silence the soul finds the path in a clearer light, and what is elusive and deceptive resolves itself into crystal clearness. Our life is a long and arduous quest after Truth

I agree with them. In silence, we can decipher much from the realities of life. In silence, we can hear the tiniest voices which in ordinary circumstances are shoved away in a din. In silence, our souls get enriched and are able to find Truth as Mahatma Gandhi suggests. Silence sometimes keep us sane.


But the world has turned riotous. We hear four wheelers blowing air horns, fingernails scratching on blackboards, mastication of potato chips and styrofoams rubbing against themselves. We hear of dentist's drill and leaf blowers. We hear of flying aeroplanes.

In such cases, do we retreat to the Gobi and Kalahari Deserts? Do we seek refuge in Central and Uhuru Parks of Nairobi? Do we travel back to our ancestral homes where there is not much noise like in the city? Where do we find tranquility?

Silence is precious. As Henry David Thoreau postulates:

Silence is the universal refuge, the sequel to all dull discourses and all foolish acts, a balm to our every chagrin, as welcome after society as after satiety as after disappointment

Granted, silence is a good thing. It replenishes us. I have heard others say that silence frightens them. I agree with them. It frightens me too. But many a times have I compared my solace in the city and 'the land behind the hills'. While the former ostensibly looks appealing what with the technology it offers, the latter brings me in touch with reality and in 'reflection mode'. All of a sudden, I feel re-energised and receptive. My mind opens up and I think about serious things like why the sun rises and why it dies. Though I might not have answers to them, at the very least I am able to think about fundamental themes in life.










                                                    

Kiswahili For Lawyers: Lesson #1

While I was in Third year in my undergraduate programme in law, as we were preparing for Legal Aid to the people at Kuwinda Slums and Langata Women's Prison, our Head of Department curiously asked us questions like how we will talk with our 'clients' in Kiswahili. She asked how we could say guilty or not in Kiswahili.  Somehow, we managed to extricate ourselves. Ironically, we were much adept at speaking in English than in Kiswahili ( which almost automatically follows for I have not seen statutes written in Kiswahili).

But the question that begs is this: How prepared are we as advocates especially where speaking Kiswahili is concerned? Put it differently: In the spirit of the East African Community, could we competently say that we are ready to take over a country like Tanzania?

I am alive to the fact that most of the time court procedures are carried out in the English language. But still, how effective are our communications with our clients if they are delivered in a smattering of Kiswahili and other times a fusillade of English terms that beat the comprehension of our clients?

Lord Denning once remarked that words are lawyer's tool of trade. Words are the vessels which carry meaning; they have the potent of effecting meaning and understanding yet they could be a great source of confusion. Words should be our tools, not our masters. In the strictest sense of the word (no pun intended), it has to relay information.

But, pray, how many advocates could stand before a court of law or hold a proper conversation in Kiswahili in their law firms? ( Yours truly is also guilty on this, I think we all take the whip) Well, you might counter that the average Kenyan citizen is not a Wallah Bin Wallah. I agree. You might also quip that the real object of our learning is on technical law and not issues to do with language. I also agree. But don't you think that that lends credence to what Chinua Achebe would call ' the fatalistic logic of the unassailable position of English in our literature'? Well, law is not literature and as of that much I concur; yet, Swahili language would have buttressed our own understanding of the law if we cared much. 

I have been reading Ngugi wa Thiong'o's Decolonising The Mind lately. May be much of the content there dwells on literature but some parallels could be drawn. Here's an excerpt from page 9 that I reproduce verbatim:

Berlin of 1884 was effected through the sword and the bullet. But the night of the sword and the bullet was followed by the morning of the chalk and the blackboard. The physical violence of the battlefield was followed by the psychological violence of the classroom. But where the former was visibly brutal, the latter was visibly gentle, a process best described in Cheikh Hamidoe Kane's novel Ambiguous Adventure where he talks of the methods of the colonial phase of imperialism as consisting of knowing how to kill with efficiency and to heal with the same art.

I will not bother to expound on that. In our legal voyage, we have been introduced to Latin and sundry legal terminologies. We could not escape from this because much of our laws were borrowed from England vide the Judicature Act. Thus we find ourselves, either by nature or design, confronted with many questions.

Does it mean that we can do away with Kiswahili in toto? (Those Latin terms again)


What is the proper place of Kiswahili in our legal system?


If we are to continue using Kiswahili in our legal system, to what extent should it be?

If it be true that Kiswahili has a place in our legal system, to what extent could we say that we are prepared?

These questions and many others need our attention.


With these in mind, I set out to expand my knowledge on Kiswahili particularly for my legal mind. I stumbled upon a small book, titled Kamusi ya Sheria: Kiingereza- Kiswahili by S.A.K. Mlacha of Taasisi ya Uchunguzi wa Kiswahili Chuo Kikuu Cha Dar es Salaam.


How will you call ab initio in Kiswahili for instance?

What of a criminal act?

And act of God?

Well, you got those. Fine. What about actio in rem?

Actus reus?

Affidavit?

Bankrupt?

Conveyance?

Conveyancer?


I know you are asking: Excuse me a minute, I thought we were in a law class and not a special Kiswahili lingustics class or something. So what difference does it make? I leave that to your careful judgement. For the sake of learning, we won't go insane if we learnt a couple of them, will we? ( Watch this space for more on our Legal-Kiswahili class).


I read the book and it informs me that criminology is elimu jinai and that cross-examination is udososaji, udadisi au kuhoji. It further informs me that criminal procedure is taratibu za kesi ya jinai. A criminal act is kosa la jinai and finally coitus interruptus is katiza wakati wa kujamiiana, chomoa na kumwaga shahawa nje.


Any questions? Good. If there are no questions, let's meet in the next class.

Naomba kuondoka.

This Man Santa Claus

Let us not pretend. In my village, we grew up never knowing about this character called Santa Claus. It is very much later when through benefit of education that I came to hear about him. You should really forgive me for my ignorance because all that we knew was that during Christmas we went to church, followed the hilarious role-play of the birth of Jesus then proceeded home to have goat-meat, chapati and rice.

And that was pretty much what he had on christmas. Of course, there were small incidents of constipation but which were treated by quick administration of herbs. But all in all, Christmas was a day of celebration and that was it.

You can imagine my bewilderment, then, when upon joining the university I casually hear of Santa Claus sometimes in November. My gut instincts tell me that Santa Claus must of course be some new lecturer to take up a slot of Communications Skills after it was left vacant due to a small fight that occurred between the lecturer and the university messenger. In my mind I imagine how he ( I am talking about Santa, not that pugilist of a lecturer) will introduce himself in class: Morning Class, my name is Santa...Santa Claus and from now on I will be taking you Communications Skills. Rules of operation, one, by this time you should have known the difference between an adverbial and adjectival clauses, subject-verb agreements....

Out of curiosity, I try to find out what Santa means. That curiosity thing is in me. I can even wake up one bright morning and ask you whether your family line has some history of witchcraft. Or I might ask you what it means if an owl tu-whits at night. You see, it is an in-thing. If I were in the village, I would have asked some old man the clan, the totem, the genealogy of this person called Santa. I will even ask whether he descends from a good blood of warriors or cowards or whether his great great grandfather had one wife or many.

But here, in academic prison, if you have a question and there are no old men you just ask the lecturer or ask a computer. This is just crazy, I mean, in all wisdom, how could it have been possible to ask a machine to tell you an answer to questions? If I whispered this to an old man in my village, he will throw away his snuff bottle, spit and say: " Lorot, Son of Lokwang'ole, you can't lie to me!" While saying this he will brandish his forefinger in preparation for a curse.

So I type out Santa Claus and hit enter. Search results reveal to me that he doesn't even exist. I mean, I wanted to know who his father is, whether he is married or not, where he stays, whether he has problems with the wind that blow to people's faces. And what do I read? "legendary" "mythological". In all honesty, how does it help me to know that he is from North America? I thought this Santa Claus should have had roots in my village too. I give up and leave the computer in a huff. Well, not a huff exactly but in disappointment. There are many characters who are not "mythological" that could easily make meaning in my village. The chief, for example. He could wear a leopard skin and an ostrich-feather headgear and lurk behind shrubs not distributing candy but traditional fruits like angalalio and among'oo.

This Santa Claus could also be given a local name like Lotulia or a corrupted version of Santa Claus, Sandak Po Clas.

Whatever the apparel, please, Santa Claus should never ever wear red because we have had so many incidents of people who have been dispatched to their Makers early after lightning struck them. Wearing red is a bad omen. I hear you Santa Claus are a good man, so wear any colour but not red and you will never stir the wrath of lightning. And please, that small bit of stealing can't work here. Chasing you around in the village for stealing a box of biscuits will not be a good idea. Certainly it will spoil Christmas for you and us.
 

Resource Materials

Here's a link to the letter attorney Roland Boyd of McKinney, Texas wrote to his son and was printed in the Texas Bar Journal ( the November 1962 issue) How To Succeed as a Lawyer Enjoy the read.

It is the online version of Common Sense Rules of Advocacy for Lawyers by Keith Evans.

And that Letter from Contract Worker by Jacinto Antonio