|
Getting your Trinity Audio player ready...
|
On 23 February 1997, we received the devastating news that Nairobi University student leader Solomon Muruli had died in a mysterious explosion at the halls of residence at Kikuyu Campus. I had been with Solomon and other student leaders at Chester House hardly a week before where we had convened a press conference to decry some of the ills President Daniel Arap Moi’s government was visiting on university students and the dire state of human rights in the country.
Solomon was the Vice Chair of University of Nairobi Education Students Association. Together with his chair, Nduko O’Matigere, they had been among the few resolute student leaders who had consistently defied the harassment to which Moi’s government constantly subjected pro-democracy student leaders. Solomon was sharp, principled, reflective and ideological – and, unlike most of us, measured.
Now, on this February 23rd, all that was left of this soft-spoken lad were his charred remains. The police promised that “no stone would be left unturned” in finding and bringing the culprits to justice when in truth, they already knew that those culprits must have had a direct line to State House. We knew this too, so we would not wait for illusory justice to come from the police or from Amos Wako, the then Attorney General and head of the state prosecution service; we took to the streets and held demonstrations, vigils and memorials in honour of Solomon Muruli and other students killed by Moi’s government.
Poetry and resistance
It was at one of those memorials – specifically, a gathering at Ufungamano House – that I first encountered Pheroze Nowrojee’s indelible voice, a signature that registered immediately. The words from his poem for Solomon have stubbornly played in my head ever since.
This charred shape is not the son we lost
It is the charred shape of those who govern us
Those who govern thus in our name
But are not us
I admired human rights lawyers greatly then. I was in awe of Paul Muite, Mohamed Ibrahim, John Khaminwa, Willy Mutunga, Martha Karua, Gibson Kamau Kuria, Kathurima M’Inoti, and a young lawyer, Erastus Wamugo, who was always by our side and who accompanied us to every student disciplinary meeting at the university and later to court when we were eventually kicked out of university.
But the lawyer I thought was my true hero was Gitobu Imanyara, partly because of his stoic intellectual, ideological and radical stand. Gitobu’s radical ideology resonated with me because, through his Nairobi Law Monthly, he introduced to me while I was still in high school the intellectual excitement and radical possibilities that the law, or those who wielded it creatively, could conjure. I would briefly meet Pheroze for the first time at Gitobu’s office. All I remember about that encounter was the elegant intellectual aura that hovered around Pheroze and his genuine ebullient smile.
But, on this Solomon Muruli’s memorial day, seated at Ufungamano House watching and listening to Pheroze read the poem about Solomon triggered a special spiritual admiration of him. Maybe it was because of how, through poetry, he had found a way to explain that Solomon’s contribution was not in vain. Maybe it was his magic of weaving evocative sounding words to symbolise the resolve of those who believed that a better Kenya was worth fighting for – perhaps even dying for. Maybe it was both and more – the more partly being his prophetic and humble poise. No wonder, almost immediately, I would go back to search for old copies of Nairobi Law Monthly, just to scour through for his poetry and writings. Still, as fate would have it, beyond engaging with his literary work, I would not interact with him again for more than a decade.
Endless generosity
Then, days after the promulgation of the 2010 Constitution, Willy Mutunga, Yash and Jill Ghai offered me an opportunity to help establish Katiba Institute. I was based in Canada then, where I ran a small but contented legal practice. The invitation to help establish Katiba Institute was the opportunity of a lifetime that also aligned so much with my activist interests and professional goals. Importantly, having the opportunity to work directly for and with two individuals – Yash and Jill – whom I greatly admired for their intellectual and personal integrity was already too much luck. There was nothing to think about.
But there was a problem.
Yash and Jill’s vision of Katiba was to make it the foremost organisation in public interest litigation on constitutional issues as well as a facilitator of public participation. The hitch was that, at the beginning and for a while, I was the only staff of Katiba Institute yet I had not been admitted as an advocate in Kenya and therefore could not argue cases in court – at least not as an advocate. But an even greater problem was that, while I had a good understanding of the constitution, its mission, intricacies and logic, I had no experience in the procedural nitty-gritty of Kenyan legal practice – an important ingredient if one is to be an effective public interest or strategic litigator. When I raised this concern with Yash, he seemed unbothered, instead retorting that “we have enough friends you will lean on for that”. True to his word, he would soon invite me for dinner at his home to introduce me to Pheroze.
From then on, Pheroze became one of my go-to people for procedural practice details, strategic and tactical litigation advice, and at times, even for an understanding of the nuances of substantive law. Pheroze would spend hours on the phone patiently explaining even the small details about law, litigation tactics, a specific judge’s temperament, and would occasionally help guide me on ethical issues of practice. At least twice, when he had been on the phone for about half an hour explaining a concept, he had suddenly asked: “Waikwa, are you at the office? Then give me fifteen minutes and I will be there.” He was at Katiba offices in no time.
But two specific moments of Pheroze’s mentorship are worth noting here. In April 2017, the Court of Appeal was to hear an application to stay the High Court decision in Maina Kiai’s case that had determined that the tally of presidential results at the constituency was final. Few people had paid attention to the matter while it was in the High Court, but the political and jurisprudential stakes had suddenly become too high after the High Court’s decision. Those of us who had litigated the case earlier and understood the constitutional radicalism in the High Court judgment could not fathom the possibility of a reversal of the decision by the Court of Appeal.
I knew whom to call: Pheroze. He spent hours working out with me and my colleague, Christine Nkonge the most tactical and effective procedural and substantive arguments that would preserve the High Court’s decision. His signature voice on the day – “… technically there is nothing to stay here” – still reverberates in my head to date. And, yes, the Maina Kiai jurisprudence was mostly the reason the 2017 presidential election was nullified by the Supreme Court.
This impact of Maina Kiai’s jurisprudence offers a perfect segue into my second notable Pheroze mentoring moment.
Following the nullification of the 2017 presidential election – Raila Odinga refused to participate in the repeat election because the Independent Electoral and Boundaries Commission (IEBC) had failed to effect the changes ordered by the Supreme Court. Consequently, the repeat election was a sham, with only 18 per cent of registered voters participating, and even that number seemed strategically inflated by the IEBC. Leading human rights NGOs decided to challenge the outcome of the repeat presidential election. I was asked to help recruit and coordinate the legal team. At the litigation team’s inception meeting, we agreed we needed to recruit an experienced, respected and respectable senior counsel to lead the legal team. Pheroze was on top of my and nearly everyone else’s list. So I called him.
It was perhaps my shortest phone call with Pheroze. He had two questions: “Who else is in the legal team and why do you need me?” I spoke of seniority, experience, respect and respectability, and listed our team members who included Julie Soweto, Harun Ndubi, Don Deya and Dudley Ochiel. His response: “This legal challenge is very important, and it must be done. But you do not need me or the so-called senior counsel because you have the right lawyers for the job. But call me, even beyond midnight – if you think I can offer any strategic advice.” We had the endorsement that mattered the most so we went to work and decided that Julie Soweto would be our team leader.
A few days later, seated at the Supreme Court next to Julie listening to her make her opening statement, it dawned on me why Pheroze was right. Julie’s opening statement was crisp, contextual, bold and delivered with intellectual integrity and poise, almost in the same way that Pheroze would have delivered an opening statement.
The power in humility
In legal practice, and especially in strategic and public interest litigation, there are endless moments that specifically beg for musical or poetic therapy. I owe my sanity in many such moments to Pheroze – reading his poetry, reading his intellectual work and regularly watching and listening to recordings of his oral submissions. No wonder his Gandhian, bespectacled image, his poise and the alliteration as he recited Solomon’s “charred shape” poem remain fresh in my mind decades later. As do many other lines from his poetry and writings:
“Tyranny is so unoriginal”.
“All this can happen again, and soon.”
But of Pheroze’s many philosophical or prophetic lines, the one I am most fond of is one said directly to me, and which now undergirds the indefatigability in my everyday spirit of advocating for human rights and social justice: “… We do it [standing up and advocating for what is right] for the record – because – in history, nothing is more powerful than the record.”
The intellect, integrity, voice and humanity of Pheroze illustrate what perfection, dignity, commitment, and true goodness in a human being is, can be. To me – and in many ways – Pheroze represented what the optimal of a fallible, yet most decent and dignified human being looks like.
Still, the spirit of Pheroze remains. It stays with us and within us who had the privilege to interact with him. To learn from him. To experience his genuine, gentle and generative mentorship. And when we are all gone, it will have passed on to others even as it perpetually infects and inspires generations to pursue justice. And, importantly, inspires them to be good human beings!
Kwaheri and thank you, Pheroze!
