Conversation on justice I

Link

A: Good Professor, of my right to ask I lack, but my desire to apply to my faculties the philosophical dimensions of law I leave to your judgment. Tell me, Good Professor, what justice is, having explained it, rest my probing mind.

B: Probing minds shouldn't rest. Inquisitive minds are like the arguments of two philosophers, they shouldn’t relent. Now, you ask a baffling question and of my 30 years of looking for the answer, isn’t embarrassing that I possess no answer?

A: To that extent, Good Professor, I can surmise. The subject, as it were, produces more heat than light...

B: Careful. Not heat. Because if you speak of heat we are presupposing that it is an emotive topic, an area that can evoke public outrage. To my mind, this has been a question for professors to grapple with in the academic world. As the subject continues to occupy their minds, to a large extent, justice has been  individualised and has been defined in terms of their application in their lives.

A: Most certainly. Consequently, what would be just would be out of “positive outcome” of a decision of a fact-finder and judge and unjust if not along these lines. But is this what justice presupposes?

B: Justice is not a limited concept, fortunately or unfortunately. Justice is a fountain wherewithal the refreshing waters of eternal replenishment abound. But not without misgivings.  Thomas Jefferson ‘trembled for his country’ upon the staggering truth that ‘God is just’ and that ‘His justice cannot sleep forever’. Wasn’t it Mohandas Gandhi who said that ‘there is a higher court than courts of justice and that is the court of conscience which supersedes all other courts’? We are also reminded of Martin Luther King, Jr. who observed that ‘the moral arc of the universe bends at the elbow of justice’.

So, good friend in search of knowledge, it is good you ask that we may, in a manner of speaking, discuss some of these realities. To discuss justice is to discuss the mysteries of the universe: one never exhausted it.

Excerpts From My Nanyuki Diary

(Submitted to the Laikipia County Times)

‘You are in exhibition. You see a canvas. Somebody has poured paint all over. You hear people say, ‘I love the theme of this paint...just look at the emotions it carries...so subtle...so nuanced. And you are there wondering: What are these people talking about? What emotions?’

So, my love for poetry found me travelling to Nanyuki on 5th August this year for a poetry performance in a newly-formed poetry slam dubbed ‘Thank God It’s Friday’. The theme was on street life experience. I had settled for Child of Shame, a poem that highlighted the experiences of street children. I felt that their story hadn’t been told much and that through the medium of poetry, the challenges they braved in the streets and the vulnerability they faced needed to be spoken out.

The event was to start at 5.30 p.m. My hosts Mathew Owino and Sam Kairu treated me to the scenic beauty of Lily Pond. Matter of fact, I stood right in the middle of the equator at Lily Pond Arts Centre. I was taken through the Exhibition Hall and got an opportunity to see good paintings displayed on the walls. My mind rushed to a comment that my lecturer once made a while back about paints. She said, “So, you are in exhibition. You see a canvas. Somebody has poured paint all over. You hear people say, ‘I love the theme of this paint...just look at the emotions it carries...so subtle...so nuanced. And you are there wondering: What are these people talking about? What emotions?’ Well, I felt like to act this but I stood there, looking at the paints and admiring the talents. But seriously, I have never understood paintings, especially those abstract ones. Anyway, that is a story for another day.

Outside the gallery, I met fellow young persons, a boy and two girls. When I introduced myself they exchanged knowing looks and almost in sync said, “Oooh, child of shame?” I nodded, really amused by the turn of events. I hadn’t anticipated that my poem, “Child of Shame”, would be recited and dramatised by them.

Inside the exhibition hall, the stage was set. One performance after another by Cyrus, Mwaniki and others. Then a drama of “Child of Shame”. I had never sat before a group to watch a piece written by myself. Honestly, as the Nanyuki youths gave emotions to the piece, in fact outdoing me in the process, I felt that there was no greater accolade they could accord me other than just that. Cyrus, in my considered judgment, was a vintage performance poet of the night. Mwaniki had this thing about him with his voice that gave life to his poems. I could feel the rhythm. I could feel the pulse of his words.

The two girls (I can’t really remember their names), kept me riveted, quite literally. I mean, there were so many initials and acronyms in their poems and yet they actually said them. Oh, the joys of being a youth! The guitarist for the night, Joe, impressed me with his guitar skills especially his song on the child painter (I can’t quite remember the title of the song). Inside that exhibition hall, with inspiration of paintings dotting the walls, Nanyuki’s talent that lay buried for long came to life.

Later that night, in the company of Joe, Cyrus and Matthew Owino, I felt humbled. Joe confessed to me that the mental image he had of me was of this tall, huge Asian or an old bloke. He told me that he was surprised that I was a tall, lanky fellow. I laughed about this. You see, I love the image of me as larger-than-life only to be shattered by the appearance of an ordinary-run-of-the-mill person.

On my bed that night, I thought about Nanyuki and Lily Pond Arts Centre and poetry and scattered thoughts of my domestic tourism. I wondered: What is the future of poetry and arts here in Kenya? What is the future of Lily Pond Arts Centre? What was the ambition of a Nanyuki youth? What desires fuelled his/her heart? In some curious way, I mused: Here, right at the equator, could the future of arts be defined? Could it be at the centre of the Earth, quite literally?

In all this, I remained optimistic. The Thank God It’s Friday (TGIF) Poetry Slam was one avenue in which the youths of Nanyuki would learn to appreciate their cultural diversity and life in totality. TGIF was like a flame to burn in their hearts on important issues they wanted to ventilate. Through the theme of ‘Street Life Experience’ which defined the first poetry slam in Nanyuki, my eyes were opened to the wonderful opportunities that lay for Kenyan youths. I believe strongly in letting off steam suppressed in our hearts. We have voices within us, we have conversations we want to bring to life. If shut off completely, they echo again and again and can drive us insane!

Three Tents, Three Stories, One Running Thread

( A Story submitted to Storymoja highlighting the Hay Festival 2011 for which the author had the opportunity to attend on 17th September 2011)

“Nobody is able. We have talents and weaknesses. We get closer to talents and further from weaknesses...the more disadvantaged one is, the further one goes.”

-- Abdelkader Benali, Author of ‘The Museum of Loved Ones’

When Storymoja offered me a free Saturday pass to Storymoja Hay Festival 2011, I had no idea of how much I stood to benefit. I remember being excited at the prospect of mingling with established writers and hearing them speak themselves. But it was more of a sketchy, hazy, far-fetched idea of how it will turn out to be.

At 11 a.m, I was seated at the Storymoja tent ready to listen to Abdelkader Benali, a soft-spoken, humorous writer, and Peter Moore, the writer of Swahili for the Broken Hearted. Benali talks about traversing the cities of Africa. He tells us about the story of Didier Drogba and of his role in shaping the politics of Ivory Coast. Didier had played in the war-torn Bouaké which is located centrally in Ivory Coast. He had wanted to promote peace and send a powerful message of unity. I listened intently to the football story and its ability to connect people and promote unity. “Football story is important for self-empowerment”, said Benali.

It was a journey to Mali, Ivory Coast, South Africa. Abdelkader reminds us of Michael Booth, the only white in the soccer team of South Africa who was always cheered and loved.  The question was thus whether football bridged colour lines especially when he had witnessed Bafana Bafana play with Jamaica and listening to commentaries being done in English, Zulu and Xhosa.

But as the conversation drew to the end, Abdelkader recounted the tale of a 28 year old Ghanaian man who had passion for football and dreamed to go to Europe but couldn’t play much. I found the story of the young man intriguing. Here was man who loved something and could do anything to accomplish his dream to the point of having all the travelling documents set. But ironically, he had no talent and couldn’t make it anyway. But as Benali thought, he would have done well in other fields because he had the drive and the right mental attitude.

At some point, Benali gave me something to think about. He was in Macedonia in a boat and all of a sudden his strange host a bit far screams, “...Beirut...India...Pakistan...Poof poof (gesticulating a gunshot)...problem...no problem”. What do you do in such circumstances? More importantly, what is the message? That is a food for thought. But Benali found those kinds of dialogue most interesting and memorable.

What I captured from Peter Moore was the labyrinth of his travel chronicles. But what I had to record was what he said about travel writing. He said that it must have a theme and angle which were the keys to hang on the story. As to the carefully laid out travel outcome most travel writers suffer from, he advised people to “let things happen”. Sometimes great stories are born out of twists and turns and not patterned processes.

The first session was over.

In the second session, seated a metre away from the British High Commissioner, Rob Macaire, Abdelkader Benali and Paralympic champion Mary Nakhumitsa, I drank from the words of these great people. The highlight of the interview was the inspiration that Nakhumitcha drew in her story of having won 12 gold medals, 11 silver medals and 6 bronze medals, despite her disability. Through her story, she helps us look at persons with disabilities from a different light—that of strength and not weakness, that of champions and not losers. Further commenting on the perceived ‘weaknesses’ of persons with disabilities, Benali stated that ‘nobody is able’ and that ‘we have talents and weaknesses. We get closer to talents and further from weaknesses’. Further, he stated that ‘the more disadvantaged one is, the further one goes”. I found that to be profound.

On his running career, Benali describes ‘second breath’ as the defining moment in one’s victory, a point when one sprints to victory in the last 50 or so metres away from the finishing line. I thought about second breath we need in our various spheres of life. May be a second breath in our writing life? A second breath in our relationships? A second breath in our careers?

But even more inspiring and a bit confusing is what he had observed among great athletes who ‘ran well and rested better’ which enable their bodies to recover. This, according to Benali, set apart a professional athlete from an amateur—professionals knew when to train hard when they were supposed to train hard and trained easy when needed.

On what inspired him to write, Benali was hard put to explain this. He had been raised in a Moroccan village where in their home they only had two books: a Qur’an and a telephone book. When he moved to Rotterdam Netherlands, he was awed by life there and wrote to ‘surprise people’. He could write well to catch the attention of his teachers of him as this ‘Moroccan boy’. He said that language is like law and that it can change somebody’s life. His phrase ‘dictatorship of modern life’ that calls for one to exercise wisdom in picking one thing to do in life is something worth pondering about.;

In the evening, I listen to Sitawa Namwalie and Yusef Komunyakaa after a glowing introduction delivered by Keguro Macharia. And it doesn’t disappoint. Sitawa reads us her poem ‘We Thought We Had Arrived’, an emotionally difficult poem that revisits the 2007/2008 Post-Poll Violence. She also reads a similar piece ‘Would You?’ which asks the most fundamental questions of our existence. Yusef, referred to as a “Jazz/blues poet’ by Keguro, speaks of a type of poetry known as ‘music of meditation’ as one that challenges one’s emotions. This, he adds, are the ones with longer lines. He also views poetry as a ‘celebration and confrontation’. Sitawa sees poetry as both whimsical and dry-eyed technical; whimsical in the sense that it puts down random thoughts without regard to form and structure and technical in the sense that a poem would be then crafted to better structure and form.

As both of these great living poets continue to read and recite their poetry, I am seated there amazed at their sizzling talents. They entertain as well as challenge me. I see myself seated there reading my own poetry from my own book. I see myself grappling with my life’s questions that I can’t answer.

When the events of the day climax with R-rated story-telling from Nick Hennessey, Mugambi, Muraya, Anne Moraa, the presenters of East FM, amongst other talented writers, I could not help but think about the talent exhibited by these souls. In a span of a day, I had acquired so much, had fun and mingled with the stars!

Part 2: Mtwapa Edition

After visiting the male prisoners, we find time to offer legal aid to women prisoners. A young woman barely in her twenties approaches me and speaks perfect Swahili. She is a Luhya but the way she speaks her Swahili is music to my ears. Sample this:

“ Ninatatizika kidogo. NImeshinda huku karibu miezi tisa bila kesi yangu kusikizwa. Kila mara kiongozi wa mashtaka atatoa sababu na kufanya kesi ihahirishwe. Wakili wangu sijamtia machoni. Yuwaja kortini na kujiendea bila ya kuzungumza nami..”

“ I am in a fix. I have been in remand for close to nine months yet my case hasn’t been heard. Every time, the prosecution will give excuses to seek adjournment of the case. I have not yet met my advocate. He does come to court but disappears after court sessions without talking to me.”

Swahili aside, the most depressing indictment of our court system in Kenya is the backlog of cases. One in remand could stay there for more than a year without his case being heard and as if that is not ‘torture’ enough, every other time the case would be adjourned. I heard from a couple of prisoners the common problem of them not being given an opportunity to address the court especially when they are representing themselves. They are conveniently ignored, they say. Two issues: One, how adequate is free legal representation in Kenya? Two, are there instances of blatant disregard of an accused’s right to legal representation? If so, what are their recourse in case of breach?

There was an interesting case of a woman whose sentence was erroneously computed. Instead of doing it concurrently, the sentence was made to run cumulatively! As such, the prisoner ( according to this error) was to be out of prison in 2017 yet in real sense she was to be free three months ago! So grave was this issue that our supervisors had to intervene and explain this anomaly to the prison authorities.

I met another case of a woman who had paid an advocate some sum so that she could be represented but the advocate went missing. That was embarrassing especially as I set out to explain the role of the Advocates Complaints Commission and how she could lodge her complaint.

I notice that a tree we sit close by has most of its lower branches chopped off. My imagination goes on a stampede. Is it to prevent a prisoner from running and hiding on top of this tree?

We handle a couple of other clients and by almost 4 p.m. we are done. Later in the evening, as we walk in the streets of Mtwapa, a friend admires a pair of shoes going for 450 shillings. On saying that she had 250 shillings, our good Mombasa businessman summarily dismisses us saying, “Jaribu kesho”. You see, these Mombasa businessmen don’t get it. We, the bara people know how to bargain. You say a pair of shoes goes for 1000 shillings and we divide that figure with 2 and minus 100 shillings and start bargaining from there. But again, Mtwapa is not Muthurwa and Abdulrahman is not Kamau.

Next day we visit the beach. At least with the consolation that I can swim, I secure a boat ride with my friends. It is a wholesome experience seeing the coral reefs under the glass in our boat. Our driver calls his wife and tells her that he is on a boat “in the high seas”, in the “middle of nowhere” and that “the problem is that he hasn’t signed a will”. We burst out laughing. After the boat ride, I get myself madafu, pose for some photos while wearing a palm-frond hat so that in case some of my haters decide to say that I never went to the beach at least I would have some proof. Plus I made sure that the cameraman captured the coconut trees and the boats. You can’t be sure with some of these things nowadays.

Then we are off to Nairobi. One positive thing is that I no longer talk fast, thanks to the coast.

Trip to Shimo La Tewa Prison, Mombasa (Part 1)

Finally, I am travelling to Mombasa. As a herdsboy who has been raised in 'bara', you see, what Coast has to offer-- the beaches, the coral reefs, the boat rides, the sluggish and easy walks-- all of them are so inviting. We are on a school trip to Shimo La Tewa Prison to give legal aid to the remandees and prisoners.

Friday 19th-- the D-Day

We check into the bus at around 9. We are off by around 9.30. I carry a small bag containing a few clothes, Patrick Kiage's Essentials of Criminal Procedure, The Constitution ( Well, let me admit it is the Proposed New Constitution but hey it is the real thing nonetheless), a small notebook and my favourite copy of Nuyorican Poets Cafe ( to take care of my poetry cravings, you know).

You remember how we used to write our compositions? We went, went, we weeeeeee-eee-nnnnt, we weeeeeeeent and weeeeent. Yes. It was a long journey. At around 6 p.m, we had checked into Mombasa town. A colleague points to me Nyali Bridge. So this is Nyali Bridge after all? I think to myself. Then I see a board saying Kisauni, Mtwapa and Kongowea ( I am not very sure about Kongowea. You see I could create places in my mind). All I know is that I felt excited being at Mtwapa. I felt like to call my kinsmen and tell them " Nimetua Mtwapa mimi kwa raha zangu" ( I have landed at Mtwapa 'in my happiness'). I just sit, talk and observe.

We stop somewhere near Nakumatt Shopping Mall. We are given around 20 minutes. I walk purposefully to the mall, stroll checking what it has to offer. I make up my mind that I am not buying anything. Thoughts of being rich flood my mind. I think for a moment that I am the owner of Nakumatt ( more precisely, majority shareholder) but you see these thoughts are very depressing. So I stick to being the consumer, do several laps, check the price of a good bag as if I would eventually buy it and off I get out.

Twenty minutes are over. We get into the bus. Destination? Danpark Hotel and Apartments. We are allocated rooms. My friend Tom and I are allocated room no. 14. We get inside the rooms, shower, watch news briefly and get out to have our supper. What a meal from the buffet! ( I can bet I have added a kg from all this). There was this blind man ( not blind, I am sorry, that is not politically correct: A man who had lost his ability of eyesight) who was a comedian/singer/clown/pseudo-Moi/pseudo-Kibaki, a motorcycle and even a plane! He rocked our evening.

I scan the room later. We have a balcony outside. Inside, I see a bible written das neue testament, le nouveau testament, the new testament. I think: These people are considerate to feed the body and the soul. Another good thing is that their sandals are not of different colours and not disfigured.  That is a story for another day ( ha ha). No much event. I am tired. Tom is tired. We hit the bed at around 11 p.m. Day one over.

20th August.

Saturday Morning. Dan Park Hotel and Apartments. There are some kinds of breakfasts which are not breakfasts. They should be named something else ( may be early lunch or something close to that) for all I know of a break fast is that it consists of a cup of tea and may be a mandazi and that is it! Now, when we have cornflakes, milk, eggs, sweet potatoes, slices of bread, watermelons, bananas and some mandazis, I am at a loss my good people. Speaking of which, what is a nylon tea? I saw it somewhere along the queue of what we were supposed to take but I chose to ignore it. You see, they say better the tea you know than the nylon tea you don't know.

At around 9 a.m, we set off to Shimo La Tewa Prison. In the meantime, some chap is telling me that the acronym HAGUE ( pronounced HAGUE), stands for : H- Henry Kosgei, A-Arap Sang, G- General Ali, U- Uhuru Kenyatta, E- Eldoret North MP. How people can devise such beats me!

Inside the prison, we are addressed by Mr. Sawe who we were told was the officer- in- charge. He tells us that there are around 2,300 remandees inside there ( actually an excess of 1,300 because the capacity is for 1000 only). I think: Shouldn't we think more about rehabilitation than punitive punishment? What of out-of-court-settlements and ADRs?  As we are taken round, I see the usual board of the rights of the prisoners by KNCHR. We are also shown the MUHURI office and madrassa. This is commendable. But I have my doubts. Are these offices cosmetic, so to speak, or are they there to defend the rights of the prisoners? Because, there were common legal problems of prisoners' rights being infringed. I also notice that there are flowers and a beautiful garden. Wonderful, I think to myself. A nagging thought, though, : Pray, what does Shimo La Tewa mean? I note that their vision is to be a "correctional service of excellence in Africa and beyond". Not bad for a prison. Not bad at all. Another positive thing is their "karakana" where we saw charcoal jikos, beds, tables, stools and wonderful pieces of furniture made in prison.

We gather somewhere and start the business that really brought us. We offer our pieces of advice for about two hours. These interviews were really practical because you were dealing with a real person with a real problem. Not some abstract postulations. And you could feel how law operates as opposed to how it ought to operate. You meet a wide array of issues, look one accused of murder straight in the face and all this time you are thinking: Did he really kill? His eyes are so calm not to have stirred up violence? Why did he kill ( assuming that he killed) But you don't ask these questions.

In our trip, we visit the cells. I notice a soap stuck on a wall. The place is clean and from the fact that we are shown only two rooms I am led to think that this could have been a PR exercise.

( There are a couple of events subsequent to this. Watch out for part 2).

Quotes on Hope

I share with you random quotes I had previously shared on my facebook wall. They were scattered. Here, I lay them systematically.

1.We had a man-to-man talk with sorrow a long time ago. I sat him down, talked with him for two hours. He was decrepit, shallow, sunken. As I talked to him about the rays of the sun and the exciting beaches and the mystery of the human voice, I realized that I was in the wrong company. We are not in talking terms ever since. 

2. I overheard somebody say that I am 'annoyingly happy'. I thought about it and I confess that I hold the earth with a candlestick and as it flickers rays of hope who am I, Lorot Son of the Hills, not to share with you its light? 

3. Child of Hope, as you end up this week always know that your efforts count a lot. Push yourself to the limit, be at the edge. You have all that it takes to accomplish what you want to do. Work on your to-do list, Child of Hope. The clock is ticking.

4. Child of Hope, with all the uncertainties- the soaring food prices, the debilitating news of Somali refugees, the selfishness- these should not depress you. In your own small little ways you could help the world. Forge on, Child of Hope. Put a smile on somebody’s face today.

5. When you rise up to speak, Child of Hope, guard your tongue. What will invectives, insults and chest-thumping yield? Where is wisdom in stirring wrath? If need be, be silent but when you stand up to speak, speak in the wisdom of our people. If your words be measured by their weight, let them break the weighing machines, not some empty chatter . 

6. Many ask me what keeps me keeping on. When I tell them that this life is exciting, they don’t believe me. Listen to Marangi’s Dura Coat adverts, watch the GalSheet advert of our dude being chased out, watch the Blue Band woman ride a small bike and stopping a moving bus. In these small things we find humour. 

7. Until and unless Kenyans stop following the sideshows of our politicians, we might never discover the prank they play on us. Our politicians have mastered the art of distraction. If a politician breaks into a song in a press conference, we should not be distracted by the hoarseness of his voice. Rather, we should ask whether that is the same voice we gave him to articulate our issues.

8. And what do our youths of today have to offer? It is sad that in Kenya today, we find old minds trapped in young bodies. Bestraddling our political landscape today, we see them everywhere. Of ‘Youth MPs’ who think like 70 year olds or 80 year olds or 90 year olds. Their claim to fame is that they are young yet in their minds they carry the baggage of tired ideas.

9. It will be a tragedy of our times if we fall into the same trap again. Let us never lose sight of what we need as a country. These nonsensical outfits we call political parties are the gravy trains that have halted our leap into the future. I have no problem if a clever politician comes up with a name like Vigeugeu Hapana Tena. Problem will be if he will take my country to different level.

10. Coupled with hope, keep humour close with you. If you see ‘blind’ men begging only to run when they see the City Council askaris, laugh at this. There is always humour around you, of people talking to themselves in the streets, of our politicians, of the best of life’s comedies.

11. And you might forget all else, Child of Hope, but always keep this with you. Hope is the last thing you can lose. You can replace wealth, you can replenish knowledge, you can fix a broken tooth but you can’t fix a shattered hope. Hope is the spring in your feet, the urge in your voice, the dream that keeps you going.

12. Keep on, Child of Hope, Keep on. Whatever the affliction, whatever the difficulty. Children of Hope live with the stars and the moon and the galaxies. They are not ruffled by whirlwinds for what are they but confused chaos with no purpose? Keep on, Child of Hope, Keep on.

13. Child of Hope, never let the month of July chilling cold shake your bones. Didn’t they say that after cold there’s warmth and that sorrow invites surprises? August will be here. Soon, whatever chilly sensations that have been numbing you will be gone, inviting the warmth that will light up your dreams.

14. Child of Hope, never ever despair. You have walked in the searing sun of the day, why should the fickle light of the moon discourage you. You are a Child of Hope, always remember that. 

C) Lorot Salem 2011

Prison Diary

Never been to prison before. Till last Saturday. Well, you must be wondering whether the prison reforms in Kenya have gone high-tech as to include blogging rights to prisoners. No. We had gone to Nairobi West Prison for some legal aid in our capacity as students at the Kenya School of Law.

We were taken round to see the facilities there. My mind is filled with a lot of issues. I would not post them here. But that visit helped me to open up to so many realities. They say tembea uone. Sorry for such a sketchy post.

I need to apologize to the readers of this blog for my hiatus. I am back with a bang. Watch this space.

Legal Writing and Drafting #1

Let us be on the same page: when I photocopied the legal writing and drafting exercises and flipped through the question, I knew I was Mr. Munene’s dead meat. I looked through. Generic transitions. Dovetailing. Active voice. Passive voice. Concrete subjects. Action verbs. Subject verb distance. Sentence length. Emphasis. Single word emphasisers. Changing word order. Breaking pattern.

For almost thirty minutes I looked at exercise one and all I thought about transitions was political. That is, the way a country moves from despotism to dependency. So I asked myself: How does generic come in? Isn’t it misplaced? As for dovetailing, the least said the better. I read that dovetailing is the overlap of language between two sentences that creates a bridge between those two sentences. Doesn’t make sense. In my mind’s eye, I could see a white dove. That was fine. But tail? I was lost. I further read that dovetails are often created by moving the connecting idea to the end of the first sentence and the beginning of the second sentence, repeating key words, using pronouns to refer back to nouns an earlier sentence, and using “hook words” (this, that, these, such) and a summarizing noun. That is a lot of stuff in one sentence. Where is conciseness? Where is elegance? Where is brevity? What about feathers? I mean we are talking about a dove, right? This is my take: sentences should be able to intrinsically bond. If they cannot consult each other, insisting on quarrelling at the top of their lungs then why bother to “connect” them, for crying out loud? So, in my wisdom, I flipped through the question, saying, “Fighting, huh? When you are finished, please remember to turn off the lights”.

I also had a problem with active voice and passive voice. I told the members of my group that when I shout, then my voice is active; if I whisper, then my voice is passive. Makes perfect sense, right? But some loudmouth tells me this: An active voice is ordered in the manner of Subject, Verb, Object. A Passive voice is the reverse because you start with an Object, Verb then Subject. 

The same loudmouth goes further to say: In an active voice, the Subject is acting whereas in a passive voice the Subject is being acted upon.

Not to be lost, I remind her that in all the sentences there is not even one subject which has been mentioned. No Criminal Litigation. No Conveyancing. No Legal Drafting. An object could be a chair, a marker, a book, a mwakenya. At least, it should be tangible. The other members looked at me as if they doubted my entry qualifications. In consolation, my conscience is clear about the fact that I voiced my reservations on the way they handle questions. You see, some of these questions are very tricky and require a sharp mind to know what active and passive voices are in the first place.

I was tired at some point while handling the questions. Out of my creativity, I decided to google some of the questions. I started with concrete subjects because when I perused through the questions I did not see challenging subjects like Legal Writing and Drafting especially. 

In the search toolbar I typed: "Mark the subject and verb in the following sentences with an “S” and “V” and then revise the sentence to have a concrete subject. In some cases, you will have to create your own concrete subject.

1.       It could be argued by the defense that Mr. Smith was out of the state at the time of the robbery.”

Folks, needless to say, I got no relevant answers. I thought to myself: If google has been defeated, who am I, Lorot Son of the Hills, to know the answers. I wrote somewhere: To see Mr. Munene immediately. Why? Because he is the problem!

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

Yes and No, A Lawyer's Tool of Trade

Day one at KSL. What a crowd! I mean, 876 or something KSLees to undergo the Advocates Training Programme (ATP). I, Lorot Son of the Hills, is lost in the lecture hall.

Lawyers will always be lawyers. I mean, I noted the clever use of the words 'Yes and No' employed by the Director of the CLE Prof. W. Kulundu-Bitonye in our orientation as KSLees. The question was on whether the 'astronomical fees' were used as a deterrent, something akin to cut on the number of KSLees. And the answer he gives is Yes and No. I won't go into the polemics of that, the whys and wherefores of the 'astronomical fees'.

Forthwith, hot on the lips of the good professor Kulundu-Bitonye, I will add the words 'Yes and No' as answers to questions shot at me in class, firm meetings, KSL precincts or anywhere else.

Similarly, I will also adopt the words 'It depends' as one of my answers to questions directed to me.

For instance, if I was to be asked why I came to the law school like they did to one of my colleagues, I would not worry about the legal mandate that is bestowed upon the Council for Legal Education or trace the history of the legal profession in Kenya or some philosophical underpinnings to legal knowledge, articled clerkships or the practical aspects that the school imbues on the future advocates. No, I will not bother on that.

Instead, I will assume a contemplative face of a philosopher who has seen-it-all-done-it-all. If I wear a pair of glasses, the better. I will look into space as if some legal theory is escaping my attention, look around and with a slow voice say:

"Sir, uuhhhhm. It depends"

Of course my good course instructor would want to know more. Half of the class, realizing my mischief, would laugh. But I will not be deterred. Then, (Well, honestly, a question like why I came to law school is so much pointed that it requires some careful thought. How do you say that you came to 'test the waters' for instance and see how long it takes before you request for an academic leave?). Ok. I was at the point where I was saying that I will not be deterred. Thus after saying 'it depends', I will immediately assume the position of my course tutor, that of being the questioner, the interrogator. So I will launch my barrage of questions:

"I have been asked why I came to law school. That question also invites us to ponder on other questions  which I deem fundamental. What is my drive, my impetus, my motivation in submitting myself to a rigorous process of the ATP? Is my drive genuine or false? If the former holds, will it be right to say that my reasons are valid? And if they are valid are they in tandem with the ethos and aspiration of the legal profession? And if the latter holds, will we then say that I am in the wrong place? Well, what if my aspirations and expectations would have been false but true in the eyes of the legal profession? Will these be valid or invalid?"

By this time, I have lost my listeners and my tutor is trying to trace where I am headed to. But the intention is to sound clever and to confuse. To have no logical basis is the golden rule and it has to work out. So I plow on:

"Let me put it this way ( Apparently to make things easier but in reality not to), ceteris paribus ( I heard that term from an advocate coming out of court. My sharp colleague said that that is a Latin term for 'if things are held constant' so why not put them to proper use?) the crux of your question befits this analogy. If a man boarded the famed Clapham Omnibus on the mistaken belief that it would take him to  end A of London and it turns out that erroneously it actually drives him to end A, what shall we speak of his reasons and justifications? What if upon boarding the Clapham Omnibus, he jolts to the reality that it is not headed where he supposedly thought? In other words, reasons are many and varied, some are fleeting and changing, others are fixed and permanent? The question really is: Where do we find the nexus in all these? ( While pronouncing the word 'nexus' I would have gesticulated with both of my palms and roll over nexus in the typical fashion of  a man who knows what he is talking about.


But I would not be. My mind would be a mish-mash, a disarray of scattered thoughts.

Of course, the next question the tutor will ask will be:

"Lorot Son of the Hills, is this nexus possible to be found?"

And like Professor Kulundu-Bitonye, I will pause for some seconds ( for academic commercial break) and finding that saying either Yes or No will put me between a rock and a hard place, I will conveniently say:

"Yes and No." To save myself from other piercing questions, I will quip quickly, "For the sake of time, my colleagues and clarity, the reasons as to why I say yes and no should be a topic for another day. Ceteris paribus, I can talk about these things the whole day."