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.
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