Wouldn’t you all admit that there is either a ‘benevolent’ or a ‘subterfuge practice’ in how barristers and counsels addressing the judges in Kenyan Courts?

Article 5

By Peter Gaisiance,

DAVID KENANI MARAGA, CHIEF JUSTICE/PRESIDENT OF THE SUPREME COURT OF KENYA(Photo: file)

DAVID KENANI MARAGA, CHIEF JUSTICE/PRESIDENT OF THE SUPREME COURT OF KENYA(Photo: file)

Sept 07, 2017(Nyamilepedia) —– Let began with the ‘tragic death of most beloved princess’ in the land of the free. An English Princess with the Welsh title, who had involved two years early in a relationship with two separate persons, in a short space of a time, once at the time, first with a Pakistani doctor in England shortly after she separated from her husband who shared the Welsh title with her, then after her marriage was nullifies, she left the Pakistani doctor for an Egyptian billionaire son, who she blatantly fells in loves with and  betrothed him at any cost, from there she frequently travelled between Paris and French Rivera, then one evening, she left the French Hotel in Paris with her Egyptian companion, who had blatantly replaced a Pakistani, she got into a German car with a Dutch engine that is driven by a Belgian chauffeur full of Scottish whiskies, then chased by an Italian paparazzi on the Japanese scooters and motorbikes into the Swiss built tunnel where it crashed. A rescue briefly attempted by an American doctor using a Brazilian medicines and the all stories is told to you in Boston, USA, by an Indian … that is a globalisation said Dr Shashi Tharoor. But if this was a conspiracy which led to the unfortunate death, involved a large number of culprits, as they were identifies in

Dr Tharoor’s notion of globalisation as many as thirteen nationalities or so, the English, the

Welsh, the French, the Pakistani, the German, the Belgian, the Scottish, the Italian, the Japanese, the. Dutch, and of course the American, and the Brazilian, who should be blamed for such a tragic? Well, legally speaking that is not the whole truth, as there were hosts of witnesses whose names were never mentioned, such as the white fiat driver, who had frequently been featured in the event, the American doctor, the paparazzi and so forth.

This is, of course, not about the princess, nor it was about the globalisation itself, nor these practices came about as a result of various kinds of people, who reside outside their country or who studies their legal system elsewhere, then, started to regurgitated what they learned in Europe, Asia, USA and of course in England, and began to incorporated them upon their returns homes, nor it occurs as a result of the globalisation, where foreign goods as well as their languages can travels easily from place to place until they find themselves in the food chains or in the legal system of another country without even realised it, nor is this about the criticism or comments on the rules of politeness and correct behaviours of the barristers and the counsels superbly performed in front of the camera without doubted their etiquettes, but these was about the remnants of the old legal terminology of the colonists. Kenya, like the rest of the world had once time suffered its fate under British rules. But, unlike the rest of the former colonial countries, it carries on with the old colonist’s practices as if it is still under their controls. The rule of proceedings in the Supreme Court in Kenya requires the barrister and the counsel and any legal representatives to address the court and the presiding judges as my Lords and my Lady. Why?

At the university law school we were taught that there is a prohibition on the use of certain word when addressing the judges. The court and the judge is to be addressed according to the level of the seniority and the type of court you were in. If you were to be appearing in the county court or magistrates’ court you may addressed the judge as ‘Sir’ or ‘Madam’, while you can call your opponent as learned friend or my friend if opponent is not a counsel. As you moved to next level of the court, for example, the Upper Tribunal and the Crown Court, except with those in the Central London Criminal Court which is also known as the Old Bailey, you address the judge as ‘Your Honour’. In the Old Bailey and the High Court, except with the Master, you addressed the judge as ‘My Lord,’ as in the Court of Appeal as well as in the Supreme Court. For us and millions others, that is understandable because it is in Britain which has long established tradition, hereditary, Monarch and the House of Lords and not in Africa or anywhere else. But, in Kenya, as recently televised petition in the Supreme Court shown that the advocates addressed the judges as my Lords and my Lardy. Despite the fact that Kenya is no longer a British colony, yet they carried on with the old terminology that would not fits and does not reflects the cultures and legal system of many former colonised. To be called ‘Lord’ it mean a high rank in a feudal society or in one that retains feudal forms and institutions, especially a king. When Kenya was under the British rule, it was considered as a territorial magnate, its judges would be addressed as ‘Lords’ because they were automatically presumed to go to the House of Lords or have inherent, birth-right, patrimony, peerages to become the members of the House of Lords after their practice come closer to an end. But after independence that notion is no longer requires to be adopted or followed as it was abandoned in US soon after its independence as it were in many former British colonies in Africa, Middle East, and Asia. So, why do the Kenyan advocates, barristers and counsels addressing their judges as my Lords and my Lady? Was this the part of Kenyan Constitutions? I don’t think so.

When we watched the televised petition in the Kenyan Supreme Court in which the advocates addressed the judges in court as ‘My Lords’ and ‘My Lady.’ The English viewers were guffawing, the rests of the white audience were laughing too, and we the African viewers of the same events were laughed with them but not as guffawing as them. As some preferred rather to be grinned their teeth and moaning about it but for a very different reasons. The English were guffawing every time they looked at or watched that clips because they know that those were their slaves, who took their names and pretences and purported to practice their legal system, and the rest of the white viewers were laughed because they know the simple fact that once you are a slave, you always remained a slave, no matter how much the former masters were paid in monetary terms to set you free, you always came back and regressed to the same old cages of slavery because you find it hot to have nobody that you respected enough to report to and also because you cannot sustain yourself independently, as you never stand on your own feet, you can’t understand the concept of the freedom and freedom of expression. And when African audience laughed or grinned their teeth, it was because they can see the potential in themselves, but they never grasp their chances and take it, as such example is plentiful. We also know that there were something fishing, something dodging, something haphazard, hollow, insincere, and non-lasting about Kenyan legal system as well as we see the same weakness in other former colonies. It is not impossible to point out such faults and frivolous legal system that existing today. When we debated with obvious opponents they are not afraid to pinpoint to you that, ‘look at the rest of the Africa countries is in total chaos and mess because of a great pretence to adopt thing that has no purposes or place in their society.’

Given the importance of this issue, we can’t fail to find it where it is clearly adopted by courts all over the world. In America, Canada, and numerous commonwealth and non-

commonwealth countries that were once ruled by British, the notion of addressing the judges in courts is the fundamental part of their principles and code of conducts for their barristers and legal representatives in courts, and perhaps for their judges as well. The principle, like the law or its equivalent expression has its origin, like the life a foetus has its origin. Today, the concept of law or the word ‘law’ and its equivalent in other languages is accepted as the universal. The role of law requires the citizen to know what the principles to be followed, said Lord Diplock. The European Court of Human Rights (ECHR) stipulated that a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct. In the countries of continental Europe, for example, Germany, France, Netherlands, Italy, and so on, the notion of addressing the judges in courts is drafted as the law itself that is drafted and coded.

What do the ordinary Kenyans, who has never been to the court before in his life knows about the legal system in Kenya, do they really know that he is requires to address the judges as my Lord and my Lady, and if they do, do they really care whether the terminology is newly invented after independence or these were associated with the former colonial legal system and non-related to the Kenya tradition or culture whether ancient or modern? This is where the notion of freedom of expression come in, to allow the citizen know, inquiry, debate and express themselves freely whether they agreed or disagreed with it. If there is a genuine democracy in which people elected their representatives, they should be fully informed of these things, which I referred to as the remnants of the old legal system of the former colonist contrasting with the modern ones, if any, so they choose between conflicting opinion and the alternative role to play. If it was not media, I will not have heard of it that such a practice exists in Kenya. It has been speculated time after time that the proper functioning of a modern participatory democracy requires that the media be free, active, professional, and inquiry whatever information they wanted. This freedom of media is supplemented by the freedom of the information Act in the UK. The freedom of expression enshrined in the constitution as the part of the Human Right Act, particularly in so many modern democratic societies, because without it, everything is incomplete as the media will not be able to dig out any information and will not be able to take the executive to the court to compel them to release such information in the interest of the public. If you know the power of the law in the statute book, the Acts of the Legislative body, in any country, then, you will not doubted the importance of the Article 10(1), of the HRA 1998 in UK, which commences with the notion that ‘Everyone has the right to freedom of expression’, Article 8, freedom to think what we like, Article 9, freedom to say and write what we like and to publish our views by demonstrating, and Article 10, continue to say that ‘The right shall include freedom to hold opinion and to receive and impart information and idea without interference by public authority and regardless of frontiers’.

The notion of freedom of expression in this writing is the attempt to urge the people to debate this crucial issues, the idea of addressing the judges in court as ‘My Lords’ and ‘My Lady,’ in the country where the colonists’ rules were presumed to had been repealed, nullified and replaced with something else as soon as Kenya gained its independence. The people should be able to debate freely, criticised the authority even if it means to say something that will offences and exposes the ‘corrupt practice’ and blatantly shaming them. There was no changes of any system in the world that came about, rapidly or gradually, how bad it may be, if it is not criticised by the people who supposed to benefits from it or serviced it. In the eyes of many commentators, particularly those in the media the formal addressing the judges as ‘My Lords’ and ‘My Lady’ in any of the independence state which is not English state shall not be taken slightly. If they persists to carry on with the old legal terminology of the colonial practices, it means they are not independence at all, as many people thought to be the case, and it is the time to grant the general public and media a freedom to debate the changes, to investigate and reports and inform the citizen about the practice that is thought is outdated and subterfuge.

Even English law repealed all the Italian and French legal terminology once they became in control of their country as they were once colonised by those two. I can also said that I understand why some of the old legal terminology and practices were left unchanged since the independence. As Justice Antonia Scalia of the US Supreme Court said that in many ways the globalisation and the independence state law are at hot with each other. The notion of globalisation embarked the images of walls to be torn down, boundaries ceased to exist. They wanted their commercial and trading law for the benefits of the national and international transition to be a similar to that of their partners in Middle East, Asia, Europe, South America, North America, Scandinavian, Canada, Russia, Africa, and in the rest of the world. The similarity of the law between the countries that are neighbouring and those that are from other side of the globe or continents is not essential but very useful to simplify the trade, the commercial transition and to enforce the contract law very easily. The state law in other hand had traditionally been used to erect the barriers and prevented people crossing the borders. For example, the Walsh, which is the very part of the United Kingdom and the older part of England before Scotland and Norther Ireland joined the union, had begins to legislate laws that reflects Welsh language and their culture, even though it is hard to distinct it from that of the England, since the devolution of 1998 came to force, which was granted by the Act of Parliament. Welsh language is used as the official language that works well alongside English language. Despite the fact that Welsh is more of an English and Englised than those of the Scottish and Irish put together. And when English speaks of an English matters and calls for an English regions to be administered separately according to the devolution, which were introduced in three regions of the United Kingdom in 1998, followed a series of referendums held in Scotland, Northern Ireland, and Walsh, they referred themselves as the ‘West Lothian’.  The terminology mean nothing to you or has no equivalent in your language and culture but it means a lot to those English who campaigns for it, thus England alone has a considerable population of representation in the Parliament of Westminster who are over eighty percent majority which is the reasons why they were reluctant to grant ‘West Lothian’ a separate autonomy because they can pass any Act or law they wanted if it will make a huge different.

Before conclusion on the topic, the other bizarre question to ask is why would advocates wears or wore such a badge with a strip around their necks? Does that means that they would not be allowed to entry into the court if they did not show their credential? Again, such an act would be considered as childish which added only an insults to the injuries. The insults were that portrays of any Africa country or person as adolescence, and the injuries were that old bigotries about Africa as a whole suffers constant deprivation and denial of their contribution to the civilisation to the mankind on this earth. When the whole world watched these petition they would be asking the same question that I just posed because this can never happened in any civilised society. Of course, it is appropriate to wear such a credential when one attended a conference for security reasons and to separate themselves from those who were not officially invited or participants.

In England it was neither the executive nor the legislative, but rather the judges who proposed the abolition of the usage of the Latin maxims or doctrines dressed up in Latin, for instance, ‘res ipsa loquittar’. Lord Woolf said to the American Bar Association that he recommended the scrapping of the legal terminology derived from the foreign legal terminology in the civil court, for example ‘certiorari’ is replaced with a simple English word ‘quashing order’ and ‘mandamus’ with ‘mandatory’ and ‘prohibition’ with ‘prohibiting’ order. His recommendation was implemented by the statutory instruments number 1033/2004. As they said in Latin that the ‘lex prospicit non respicity’ means the ‘law’ look forward and never look backwards. For example, if there is a conflicts between the new law and the old law, the new law prevails. The same principles applies where there is the conflicts between any law, old or new and the constitution (for example, the Human Rights Acts 1998, HRA), the constitution prevails because of its supremacy over the rests. They also repealed the majority of the legal terminology derived from French at the time when Anglo-Norman was the language of the court. Nowadays, you hardly heard being informs by usher in Latin that ‘accedes in curiam’ mean you may come into court, because the changes that were introduced in recent decades or as long ago as Magna Carta came to force in 1215, all changes favoured the simplicity that benefits those who brought the litigations and the laypersons. Therefore, if the old legal terminology are benefited the judges, for instance in ‘curia (in open) court’ or in ‘camera (in close) court’ session, or for example, in addressing the judges as ‘My Lord’ and ‘My Lady’, then the change should not be up to them, it must come from the people. Because, in Rome, for example, there was the famous case which involved the ruler and the ruled, the Quintus Ligarius case. Caesar said no man should be judge in his case (memo iudex in cuase sua) in Latin. Therefore, the old legal terminology in addressing the judges ‘My Lord’ and ‘My Lady’ shall simply be swept away with the time and replaced the term ‘Your Lordship’ with ‘Your Honour’ as the changes is perfectly adherent to the system very well, like allegiance, in America, Canada, in the countries of continental Europe, for example France, Germany, Italy, Spain, and many others, and in the  Middle Eastern countries as well as in in the whole of the Pacific, Oriental countries such as Hong Kong, Japan and in many former British colonies countries in Africa, without caused any harming and less harmonization to their relationship with the former colonists and former colonials.

If change is forthcoming, I hope it is for the better because the new legal system with its terminology can scarcely fail to be an improvement on the old legal system. I think we learned something from this rare but crucial petition to the Supreme Court. Despite, the lack of the references to any precedent in the proceedings and precise referring to any section of law relies upon, perhaps because there were none, as this is the first petition or litigation of it kinds the world had ever seen. Learning from the televised petition at the Supreme Court, the displayed of the secret files that would never be seen by the ordinary and unauthorised persons, the secret addressing of the judges in court that would never be seen if it was not because of the televised petition, thanks to the camera, and the breaching of the election rules, whatever that may entails, all you may said, has or has not contravening the natural justice, but that is not my concern here. The old system under British rules used to operate behinds the closed door as a lottery in which justice was not seen to be done and was calculated only for the benefits of the elites and ruling class while it shattering and totally demoralising the ordinary people and ‘those rejected who in a system of patronage were left without explanation or recourse’. Antonia Scalia of the US Supreme court quoted Dr Henry Kiesinger that, despite its rigidity to many things, ‘state law is undoubtedly essential tools for commercial globalisation. International capital will never enters into the country where the rules of law does not exists. It is not essential but it is useful that one country shall has law that is similar to other countries. But it is essential that a state rules of law exist and be relying upon to be enforced and had given countless example on that matter in comparison.

The old legal terminology derived from the old English customs and long established tradition of knighthood, hereditary, peerages and the Monarch with the Order of Precedence composes of the head of the family. The Queen or King, Duke, Prince, the younger sons of the sovereign, the grandsons of the sovereign, the brothers of the sovereign, the uncles of the sovereign, the nephews of the sovereign, the Archbishop  of Canterbury, the Lord Chancellor, the Archbishop of York, the Premier, the Lord High Treasurer, the Lord President of the Council, the other hosts of peerages comprises of Marques/Marquis, Earl, the Viscount, Baron, the Baronet and so on which has no equivalent in the Kenya’s culture.

So, it would not be unrealistic and uncommon sense to call for these changes, which are minor and small but very essential and significant to distance and distinguishing your legal terminology and system from that of the former colonists’ legal terminology and practice.

The judges and the judiciary personnel (courts) will treat this suggestion of a small change with a particular suspicious and might even reject any attempt to scrap the notion of addressing the judges as ‘My Lord’ and ‘My Lady’ and replaced them with something acceptable as ‘Your Honour,’ if the changes will affecting those judiciary personnel who benefited hugely from the remnant of the colonials legal terminology, then they will resist it or reluctant to change them unless the calls for these changes are included in the election manifestos so they may introduced change through governing instruments or proposed legislation as it appeared in their election manifestos.

I am not hostile and certainly as far as I know no one dare to challenge the quality of Kenyan legal system or the quality of the legal performance of the counsels and barristers in that court, nor do I dare to degrade the value of your judiciary and institution, nor do I dare to challenge the legitimacy and the authority of your judiciary or state. Despite, all the crisis that I learnt about the Kenya’s past and present, Kenya has shown to the world and to all the members of IGAD and OAU that it is assurance of confidence, of self-reliant, that it operates in freedom, in secure, stable economy and political system than many of its neighbouring countries and beyond, and it has long practices in the fields of the parties politics and it is quite naturally endowed with cohesion and permanence that it tries all its best to embrace and practice democracy as it frequently holds elections every end of the term of the Presidency. So, without prejudice to any side, if the petitioners proved their case, if there was evidence of malpractice and breached of the election rules beyond reasonable doubts, then, whether I like the result or not, I can said that the recent Supreme Court ruling to make election null and void is indeed the best gift the Kenya can give to Africa and beyond as the precedent can be refers to whenever there is such a row about election or anything of that kinds. I congratulated you and wish you all the best for change and long live Kenya and long live Africa.

Author: Peter Gaisiance (gaisiance@outlook.com / gaisance@hotmail.com)

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