Joyce Nyairo got it completely wrong about my father in her article "When shall we stop judging children by the alleged sins of their fathers" published in the Daily Nation on Tuesday, October 23, 2012.
But her words on my father are still welcome, giving as they do, an opportunity to highlight the role of the fine lawyers, including my father E.P. Nowrojee, who defended Mau Mau accused persons when the bulk of lawyers in Kenya were unwilling or afraid to do so.
The refusals within the profession had reached levels serious enough for the matter to be raised in the House of Commons and for the past Attorney-General, Sir Hartley Shawcross, to make a public statement on it.
He told the Law Society in London “I have heard it said although I believe incorrectly that certain members of the Bar in one of the colonies (read Kenya) refused to accept a brief to defend an African accused of offences of a quasi-political nature against public order.
The suggestion is that those barristers made excuses and declined to act, their true reason being they thought that their popularity or reputation might be detrimentally affected [read racism] by appearing for the defence in such a case.
“I believe,” he continued, “this report is incorrect. I profoundly hope that it is, for if it were true it would disclose a wholly deplorable departure from the great traditions of our law and one which, if substantiated, both the Attorney-General and the Bar Council, of which I am the Chairman, would have to deal with in the severest way possible.” (25 February 1953, Hindustan Times, New Delhi). These refusals were also raised by D.N. Pritt QC in his contempt of court case in Nairobi.
These were the years when capital punishment by hanging was introduced for eight crimes, (not for just the usual two, murder and treason).
There was a great need for lawyers for accused persons without any means. Too many cases were literally a matter of life and death. Several lawyers such as A.R. Kapila, D.N. Khanna, Saeed Cockar, Swaraj Singh, Sheikh Amin, R.N. Khanna, D.D. Nene, Bhailal Patel and Jaswant Singh, held to their professional standards and took up these cases. E.P. Nowrojee was one of them.
Joyce Nyairo says, “That is why we never remind him that his father, E.P. Nowrojee, was hired by the British to represent captured Mau Mau soldiers.” I say, “Joyce Nyairo, don’t hesitate at all. Keep reminding me that E.P. Nowrojee stood up to defend poor or unpopular persons when it was difficult to do so. We will try and emulate him.”
His briefs were pauper briefs. These are briefs by which the Government engages lawyers for persons who cannot afford lawyers. They are paid for at nominal rates.
The lawyers, including E.P. Nowrojee, were paid by the British Government. Joyce Nyairo then tells us that therefore these lawyers, and E.P., ‘naturally’ played the tune of the Government that was paying them. Did they?
It was of these British paid lawyers, whom Joyce Nyairo sneers at, that David Andersen in his extensive book, The Histories of the Hanged, (London, W.W. Norton, 2005) on the legal cases during the Emergency writes (at page 177), “The harassment of the families of the accused and of their witnesses began even as the trials were in process, and drew stern complaints of interference and intimidation from the defence counsel.”. The example of this that Andersen gives is expressly that of E.P. Nowrojee. At page 372 he writes : “For example, see E.P. Nowrojee’s complaints to Justice de Lestang of Home Guard attacks on defence witnesses in Criminal Case No.93/1953 Regina v Muranja Iguiru & 72 others, trial transcript, pp.237-8, KNA MLA 1/534.” It is obvious that Joyce Nyairo had not read the book before committing herself in print.
E.P. Nowrojee said : “Before the Court rises I have a representation to make on behalf of the Accused and the witnesses. The Accused have informed me that their witnesses have been severely beaten by the Home Guard during the last few days and they have had to run away from their homes. Some are here in the court grounds, but it is likely that from Monday they will be thrown out. They want protection from the Government.” (Transcript.)
In a silenced Kenya it was the courtroom that had become the sole platform for the challenge to the huge misconduct of the colonial government, and these lawyers, at a cost to themselves, were the voices that spoke up in the Emergency even while they were being paid by the British ‘colonial masters’. They had no ‘masters’. They kept working against injustice. Did the Home Guards, the forerunners of TNA’s elite backers, work against injustice? Or were they the cause of injustice and simply persons who would become camp followers of whoever might win power? I have not only represented people in Goldenberg, I have also represented Uhuru Kenyatta. And won his case for him, restoring him to his offices in KANU, when he was illegally removed from them by the Registrar of Societies and the Electoral Commission of Kenya in 2007.
E.P. Nowrojee was not afraid to speak out publicly against the people who were paying him, whenever he saw them doing wrong. He did not play the tune the British paymaster wanted.
Are there individuals around Uhuru who although Uhuru pays them, will speak up publicly against him whenever Uhuru does wrong? We haven’t heard any.
The Writer is a lawyer