‘Today, I have cooked my own goose’

Will those who remember him recall the larger-than-life personality with the engaging smile that would light up a room or his simple but profound legal pronouncements including the one in the Githunguri case, a ruling that lit up a nation? Long before he was appointed a judge and long before he became Chief Justice, he was always known as ‘Chief’. An easy and unambiguous recognition by all that he was the leader and an easy acceptance – no arrogance there, just a smile – of the role on his part.

The disarming smile and helping hand for all, behind a spine of steel, unbending on matters of principle, sum up this gentle, kind and tough man. His outreach to young lawyers, a genuine interest in their success, a ready willingness to write letters of recommendation, his easy recall of everyone’s name, and never being too important or too busy to spend a moment with anyone and everyone, these are the fond memories we and others have.

He studied at Middle Temple in London and was the youngest to become a barrister at that hallowed institution. He was very proud of having eaten dinners at Middle Temple. Kamla: He was equally proud of me for having followed in his footsteps. Anil: When I graduated from Harvard Law School, he said ‘Well, Harvard is nice, but don’t you want to be a real barrister? I’ve enrolled you at Middle Temple.’ I spoke with one of the Deans at Harvard Law School, who said ‘Why guild the lily?’ I think Dad was disappointed.

Dad loved Kenya. He loved it as his home, his country, his special charge to preserve and protect. He wrote the song ‘Mother Kenya’. He had no other loyalty. I remember being at Uhuru Stadium on December 12, 1963 (I got my Mother’s seat on the dais behind President Kenyatta and the Ministers and judges, as she was indisposed). He was truly happy that his beloved Kenya was no longer a colony.

His love of Kenya was for the country and its people, its animals, its magnificent topography. He absolutely loved to go ‘on safari’ and took us as kids all over Kenya to the coast, to the game parks, to the mountains, to the desert areas, all over Kenya: from Kericho, Kisumu, Kakamega, Eldoret, to Marsabit, Isiolo, Garbatula, Meru, Garissa, Malindi, Mombasa, Lamu, and places along the way, Voi, Makindu, Mtito Andei, Nyeri, Nanyuki, Nakuru, Narok, you name it. We were privileged. Getting ready to go on safari was a ritual. He would fill up about ten empty Johnnie Walker bottles with water and the case of twelve would have two slots for full bottles of the real stuff. Tins of condensed milk, butter, spices, onions, potatoes, baked beans, and other staples for use when we stopped to eat, and we were off.

Once on the road, he would be as excited as a little boy to point out a herd of elephants or giraffes or baboons, and would call out the names of other animals: tommies (Thompson’s gazelles) elands, wildebeeste and so forth. He abhorred poachers and said they would ruin the greatest natural resource any country on earth has.

He had other rituals too. What comes to mind is his evening whiskey and soda, no ice, if you please. Not abstemious, but careful, he would pour about a half-inch of Johnnie Walker, sometimes, about three-quarters of an inch and top it off with soda which, of course, meant club soda. He never drank after dinner. On Saturday afternoons he would have one or two beers and often while he was peeling shrimp or preparing Kingfish to cook for lunch. He loved to cook – it was a release. Anil: As a little boy, I would go to his office on Government Road. I remember watching the procession from the second-story window of his office when Princess Elizabeth visited Kenya in 1952 and of later seeing the flag masts cut down when her father King George VI died. It was a dramatic contrast to the pomp and ceremony before. He would take me to stores along Government Road – Beliram Parimal was his favourite because they not only had his Johnnie Walker, but also sold stinky cheeses. How he loved blue cheese and Roquefort!

Every Friday for many years, he would have lunch with his friend Rashid at the Rashid Garage. They would cook chicken with chana dal and tell jokes and recite poetry. What made him different was that he was equally at ease with Rashid as with Presidents and Prime Ministers – we had a few visit our home, among them President Nyerere and Prime Minister Ramgoolam. The man who ran the samosa shop, or Savani’s paan shop or the Gujerati businessman who had a small tailoring shop, he seemed just as happy to see them. They would invite him in and he never refused, and would readily sit down and accept a cup of tea.

As a lawyer and Minister, he wore custom-tailored suits and shirts with detachable starched collars which went to Kushal Singh Laundry. He was fastidious about his dress and having his shoes polished. But he was humble and graceful about it. One day, we were in the outdoor vegetable market on a Saturday jaunt to get vegetables to augment the shrimp. A man who worked as an accountant in the Railway office happened by. He expressed great surprise that ‘Chief’ was actually shopping in the vegetable market. ‘Chief, you in a place like this? What are you doing here with us ordinary people?’ Dad looked at him, smiled, put a hand on his shoulder and said, ‘When it comes to eating, I am just as ordinary as you.’

And speaking of the railway, he just loved to put his car on the train at Nairobi station and go overnight to Mombasa. As a judge on circuit, he relished that trip.

So what made him tick? Whence did this strength and moral fibre emanate? It started with the unshakable belief and practice that truth was most important above all else. He never lied. This did not come from religion for he was not observant of any particular faith. But he was welcomed in temples, mosques, gurudwaras and churches because he gave no offense to any. He would often say Truth is the only religion you need. That is the way he lived.

Somewhere inside him, was a fairness meter. He simply hated unfairness and hypocrisy. When he was a Minister in the Kenya government, he traveled to the US, Ghana, Nigeria, and South Africa. I asked him about South Africa and he told me that Apartheid was an evil that would not endure. What about his experience when he visited, I asked. He said ‘They pretended I was white and let me in to the best hotel. So, it’s not something they believe in, it’s just exploitation.’ For years afterward, the hotel dutifully sent him a Christmas card every December. I used to smile whenever I saw it come in.

The strong abhorrence for discrimination showed in other ways. In the 1950s he often talked about how British rule would end and must end in Kenya. He told a story about when he was running for election in 1948, or perhaps in the 1950s. He was in Thika to visit a group of mostly Gujerati businessmen and professionals on a campaign stop. He told them that change was coming and Kenya would soon be independent. They should take Africans as partners to prepare for the transition. About fifteen years too early, he was prescient about injustice not being able to stand. He said they virtually laughed him out of the room.

In the 1950s there was an ice-cream store in Nairobi that served only whites and boldly proclaimed so with a sign. As a Minister in the Kenya Government, he could not abide this. He went to the ice-cream parlor with an entourage and demanded service. Since he was a Minister, they did serve him. He bought ice-cream for the group and, at his instance, they all threw it on the street – refusing to eat ice-cream flavored with the taint of racism. The owner called the police who refused to take action against Dad, most likely because he was a Minister.

Anil: I happened to be at home when the call came from the Governor that the Queen had appointed him a Puisne Judge. I was too young to understand the significance of a judicial appointment, but Dad seemed genuinely overwhelmed and pleased. My mother and he had a special friendship, married a long, long time and able to talk to each other in complete confidence. They seemed to be sharing a special moment of happiness then. Shortly after, they left to visit an old friend to break the news personally – the next day, I learned it was Rashid.

When Dad returned home later that evening, he got busy frantically calling various people I recognized as well-known members of the Indian community. This was not to pat himself on the back but to express grave concern that the appointment had come on the eve of the day for submitting nominations for the Legislative Council elections. He would no longer be the unopposed candidate in view of his appointment to the bench. He expressed frustration that the appointment had been announced at a time so critical to the nomination deadline and allowed as how the timing was deliberate. ‘They know that I couldn’t turn this down and it will disrupt the elections.’

He enjoyed being a judge. The scholarship came to him naturally. As a young boy, he had been sent by his parents to the Punjab to study Urdu. He was as facile at turning a phrase in Urdu as in English, and loved Urdu and Farsi (Persian) poetry which he had read extensively.

As a judge he had abiding sense of responsibility. ‘Justice delayed is justice denied,’ he often said repeating that well-worn phrase. Except in his case, he did something about it. He wrote his judgments promptly and insisted that other judges also do so.

Anil: Often, I would discuss his cases with him. Before I came to the US for college and ultimately law school, I would help type his decisions which he invariably wrote in the evenings with his tall glass of whiskey-soda beside him. One case in particular I remember involved a head-on collision on the Nairobi-Mombasa road. He decreed that both drivers were equally responsible. This was my first awareness of the doctrine of contributory or comparative negligence. I questioned him about this decision which now seems Solomonic, and he told me that his job was not to protect insurance companies with technicalities but to do substantial justice. If both insurers escaped responsibility, they would have collected premiums without fulfilling their obligation to indemnify for losses. This revealed his strong sense of social justice. Some might call him an activist judge, but he would shrug off labels and say that his job was to do the right thing.

After I graduated from law school, he often asked me about American case law and I recall in one instance faxing hundreds of pages of materials to him in Nairobi. This was before the days of email. His willingness to look outside familiar law books reflected his curiosity, scholarship, and straining to do the right thing.

Perhaps he will be most remembered for his ruling in the Githunguri case. There, as a matter of Constitutional interpretation, he ruled that the Court was empowered to issue a prohibitory order barring the Attorney-General from initiating a prosecution where there had been delay in prosecution, public assurances that no prosecution would ensue and where the prosecution may be deemed abusive or vexatious. Moreover, the court could enjoin a Magistrate from conducting proceedings in such a case, if filed.

There were thunderous cheers when he delivered his ruling in the Githunguri matter. Later that day, when he arrived home, he told our mother ‘Today, I have cooked my own goose, but it was the right thing to do and I have done the right thing.’ Our mother simply said, ‘If you have done the right thing, you did what you are supposed to do.’

His comment to our mother tells us that he was not oblivious to the consequences of his actions in the real world of politics. It was his hope that he would inspire reverence for the rule of law and the Constitution, for as he warned, if you cause the people to lose confidence by weakening the Constitution, you have lost the nation.

As fearless and unbowed as he seemed about the Githunguri decision, one can be sure he worked on it thoughtfully. On another level, although he was committed to enforcing the law, when it came to the death penalty, he agonized. He told me that he was opposed to the death penalty and would strive to find a way to avoid having to impose it. But when there was no way around it, he viewed it as his duty to apply the law. And he did, unhappily.

On a related note, he talked with me about freedom of expression. It’s not the President who cares about criticism, he said, but the underlings who think it is their job to protect the President. One day a President will understand that letting people express criticism is the way to stability. It’s better than letting their frustrations get pent up. The country will be better off for it.

The scuttlebutt is that President Moi fired him from his position as Chief Justice. It was not just Githunguri, but he had refused to sanction, as some may recall, special courts as demanded by then Attorney-General Muli. There was one judiciary under the Constitution and that would have to be good enough, he said. There would be no special courts not answerable to the judiciary.

The truth is that he had reached the Constitutional retirement age. Nevertheless, he did tell me that if the President wanted him to stay, he would have. But he added that he wouldn’t ask for something that was a violation of the Constitution.

Years later, when that spine of steel had succumbed to cancer which was the only thing that could bend it, he was in his hospital bed. President Moi came to his bedside, a gracious gesture. The President said he was sorry to see Dad ill and said, ‘You have served your country well and the nation is grateful.’ You could feel the respect emanating from President Moi.

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* Anil Madan and Kamla Madan Dhall are the son and daughter respectively of the late Chief Justice CB Madan QC.
* Please send comments to [email protected] or comment online at Pambazuka News.