Against the tide: How 'Okoa LSK' 1989 edition thrust Karua to national political scene

At the turn of age 30, Narc Kenya party leader Martha Karua quit the comfort of the Judiciary as a senior resident magistrate after serving six years to set up a law firm in Nairobi.

She had barely set up the practice when the decisive Law Society of Kenya (LSK) elections of 1988 beckoned, and the candidate she supported for chairman- Fred Ojiambo- disappointed her.

Once in office, Ojiambo accepted a state appointment from Kanu, which had taken more than usual interest in the affairs of the society.

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The political opposition had been reduced to a few voices in Parliament, a handful of religious leaders and, of course, the LSK leadership. The rumour was largely ignored, and elections went on smoothly.

Shortly after the elections, the new chairman, Fred Ojiambo, now the esteemed chairman of the Senior Counsel Bar, was appointed director of a State-owned bank, a move some of us in the profession saw as an attempt to co-opt the LSK leadership and, therefore, opposed.

Chairman censure

Together with other young lawyers, we invoked the LSK Constitutive Act and circulated a petition to garner signatures of 15 members to requisition for a special general meeting of the society, whose sole agenda was to censure the chairman.

I would write the requisition, sign it, and circulate it to other lawyers, mainly my contemporaries who were the young lawyers.

As stipulated by the law, on the expiry of twenty-one (21) days, without the Law Society Council convening a special general meeting as requested, the requisitioning group would convene the meeting by issuing a notice to all members of the Law Society. The notice would have the date and time, venue, and agenda.

I recall paying the Intercontinental Hotel with a cheque from my law firm for the venue of our first meeting. We then mailed the notices to the slightly over 2,000 members of the Law Society.

On the day of the meeting as we approached the venue - the Intercontinental Hotel - we noticed heavy police presence surrounding the hotel.

I proceeded to enter the hotel and asked the management what was going on. To my dismay, I was given an envelope containing the cheque I had issued to them for the venue and was informed that they had instructions not to host our meeting.

Members of the LSK were not allowed into the hotel, and the meeting aborted. We made several other requisitions but did not succeed in holding the special general meeting. The membership of the LSK had then set the accountability bar high by seeking to censure their chairman for accepting a state appointment.

LSK’s leadership had a history of keeping the government on its toes, but our group of lawyers started to also take on our leadership for what we viewed as leaning towards the Government, thereby compromising our independence.

Leadership journey

Our view was that LSK ought to maintain its professional independence and guard against co-option by the government.

Unhappy with the state’s apparent interference with the affairs of the LSK, we remained active throughout the year, issuing statements to call out the government for its excesses.

At the next election in 1989, I successfully offered myself as a council member. This was a turning point in my leadership journey, having successfully campaigned for the seat, a first in my career and after the disappointment of losing in university elections.

I went on to serve for two consecutive terms as the only woman in a council of nine members. Our chairperson was the firebrand Paul Kibugi Muite.

 As the repression of the Moi administration escalated, and more people including well-known public figures and lawyers fell afoul of the regime, I felt drawn in by the solidarity of the legal profession to support victims of repression, especially fellow lawyers.

LSK stood with Kenyans in offering checks on President Moi’s government and speaking out against its excesses. As a young lawyer, I felt obligated to do my bit not only to protect my profession from encroachment by the government but also to keep the government in check.

Those were the days when Parliament had been brow-beaten into submission (save for a smattering of bold voices) by an increasingly rogue State.

State appointments

I and other like-minded young lawyers would write statements on topical issues of the day, routinely calling out the government for its sins of omission or commission. We would then collect signatures from fellow lawyers endorsing our statements and thereafter release them to various media houses.

These actions drew significant attention since very few dared to speak out against President Moi or his government. At the time, being a government critic was considered risky, if not suicidal.

President Moi’s administration used a carrot-and-stick method to quieten opponents. As it harassed its critics, it would also recruit from among them supporters, with offers of legal work or State appointments.

Having almost neutered political Opposition in and outside Parliament, President Moi knew that LSK remained a strong and authoritative voice especially on matters of administration of justice, human rights, and democracy.

As a result, lawyers became a target of his government, which did everything in its power to muzzle the remaining critical voices.

During that period, there was fear among lawyers when called upon to represent persons charged with politically instigated charges. This made relatives of persons arrested over such cases shuttle from one office to another looking for an advocate who was willing to stick their neck out for them.

This was what happened in the treason case involving lawyer Mirugi Kariuki. I found myself acting for Kariuki, a political prisoner who had been referred to me by a senior lawyer who felt that taking up the case would have exposed him to undue risks.

Treason charges

At first, I was not amused that my senior thought it okay to put me at risk while absolving himself, but after much reflection, I decided to take on the matter, acknowledging that Kariuki was a colleague and needed our support.

Koigi wa Mwere, on the other hand, was a former Member of Parliament for the Nakuru North Constituency (now Bahati) and had been living in exile in Norway before his arrest, ostensibly in Uganda, on allegations that he had weapons with which he intended to overthrow President Moi’s government through an armed rebellion.

Koigi was charged with treason alongside Mirugi and others. This case attracted both local and international attention not only because of the Koigi factor but also because treason was punishable by death if proven.

This was the most serious politically motivated charge by the Moi administration, and it sent shivers down the spines of many.

The now-defunct Kenya Times newspaper, which was owned by Kanu, one morning carried a screaming headline labelling all lawyers handling that case myself included “criminals operating under the guise of legal representatives”.

This was an attempt to intimidate us and scare others not to join us. However, we were lucky to have a senior lawyer, Dr John Khaminwa, representing one of the accused persons. He encouraged us not to back down, and we carried on our role of representing our clients undeterred.

During these tensions, a young lawyer by the name of Martha Koome came to me and asked how she could be of help. I inducted her into the treason trials, and she soon started accompanying me to Kamiti Maximum Security Prison to visit Kariuki.

Not long after, Koigi’s lead lawyer, Japheth Shamalla, indicated that he needed a junior to assist him in his firm. I referred Martha to him, and she joined his firm as a partner, acting for Koigi.

Self-censorship

A bond of friendship developed between Martha and I. We collaborated on many cases as well as in civil society, working with organisations such as the Federation of Women Lawyers of Kenya (FIDA-Kenya), the International Commission of Jurists (ICJ-Kenya), and in private practice as lawyers.

Most lawyers had been cowed into self-censorship. We would draft protest letters and circulate them among lawyers for signatures, signifying their support. As a result, our signatures always appeared at the top of the signatories, who would number about 20-40 at a time.

I remember my father questioning me about the wisdom of this trend and expressing his fears for my safety.

“Can’t your name be somewhere in the middle?” he once asked. Dad was right to be fearful, even if he believed in our mission. It was, however, not all fear and gloom.

Out of this activism, I was thrust onto the national stage and prominence, which no doubt became an advantage when I decided to run for political office.

Among President Moi’s numerous assaults on law and order, the detention without trial of politicians who dared question the regime was the most insidious.

This was extended to lawyers acting for such persons. Khaminwa and Mohammed Ibrahim, the latter now judge of the Supreme Court of Kenya, were detained without trial for representing clients who were at loggerheads with the government.]

Lawyer Gitobu Imanyara also suffered the same fate as the publisher and editor of The Nairobi Law Monthly, then an authoritative and respected publication that had built a reputation for its fearless criticism of the government.

As young lawyers, we were outraged by these acts of aggression against our profession and its members.

 Imanyara woes

Imanyara was often on the radar of the authorities. The Nairobi Law Monthly, a forum for President Moi’s critics, was regularly raided and the privately-owned printing press that published it was unlawfully disabled multiple times.

Imanyara was hounded and became a regular guest of the State in its various facilities - police cells, prison, and detention. One afternoon, I was informed that the police had surrounded his office.

Together with a few others, we made our way there and found a group of lawyers and members of the public. Police officers were inside his office conducting a search.

Keeping lawyers out was a tell-tale sign that they could have been trying to plant incriminating evidence, a common tactic police used in those days. We demanded to be let in to speak to our client Imanyara, but the officers locked us out.

Someone then spotted Imanyara being spirited out through the back of the building housing his offices. He was forced into a waiting unmarked police vehicle.

I had left my car in the parking lot of my office but wanted to follow the Police as they drove away. “Who has a car?” I shouted.

Imanyara’s wife, Florence, who was there with us, handed me her car keys. I jumped into the car and gave chase. As the police overshot traffic lights, so did I. They were driving badly, I was driving worse. They led me to Kileleshwa Police Station where they entered with Imanyara. I alighted, intending to follow them in.

As I made my first step, a person I later came to learn was the officer commanding the station walked towards me, and without a word, he snatched the car keys, which I was still holding in my hand, twisting my wrist in the process and ripping off a button from my jacket.

While I was still seeking an explanation for this crude and criminal behaviour, Imanyara was spirited out of the police station and bundled into another police car, which sped off.

We filed a habeas corpus application in the high court the following day to compel the police to produce Imanyara before the court.  Pheroze Nowrojee, a renowned senior lawyer, always came to our aid not only in Imanyara’s case but in all cases involving fellow lawyers or public interest.

His appearance beside us was greatly beneficial, and he became our trainer as young lawyers. After a day or two of unsuccessfully seeking the production of Imanyara in the High Court, a Kenya Gazette notice confirmed what we had feared all along: He had been detained without trial.

The government was not amused by our determination to fight back. Attempts were constantly made to co-opt some of the active members of the profession into government but we rejected.

Although our core group was steadfast, four of our colleagues were eventually co-opted to take the entire LSK Governing Council to court. They sought an injunction to compel LSK leaders from commenting on political matters.

The court, surprisingly, gave an interim ex-parte injunction. We, however, considered the order vague and un-implementable because all matters can be deemed to be political, and also given the express mandate in the Law Society of Kenya Act, gave the LSK Council the duty to assist the government in matters of the rule of law and the administration of justice.

As a council, therefore, we carried on with our mandate and continued to comment on issues of national importance relating to the rule of law and administration of justice.

Negative publicity

As a result, the plaintiffs in the case filed an application seeking to have the six LSK Council members, who were defendants in the case, committed to civil jail for alleged contempt of court. 

I was among the six defendants. The trial attracted interest locally and internationally. The Government received a lot of negative publicity and demonstrations were held in Harare, Zimbabwe, at a Commonwealth Heads of State meeting, which President Moi was attending.

There was a real fear that the government sought to imprison LSK leaders through politically motivated charges. To prevent this, we lobbied for local and international support.

Our case became a rallying point, drawing large crowds at every hearing, which likely saved us from jail. We were found guilty of contempt and fined Sh10,000 each, with assets threatened for non-payment.

The public raised the funds immediately. Interestingly, one of the plaintiffs was Aaron Ringera, my former lecturer, and another was Nancy Baraza, my former classmate.

Afterwards, Baraza courageously wrote to all 2,000 LSK members, apologising and revealing that the plaintiffs had been paid to file the case. I continue to salute her for her courage and grace.