Sharad Rao: Fifty-five years in the cause for justice

Would you believe it?

There was a time when judges in Kenyan courts would bully lawyers over pronunciation of English words.

On one occasion, it was the turn of Mr Sharad Rao, who today chairs the Judges and Magistrates Vetting Board – the team tasked with removing the bad apples from the Bench.

He was then a young, fiery lawyer, just starting his legal practice after training in England some 55 odd years ago.

Mr Rao, the defence attorney, asked the prosecutor: “What was the atmosphere like in the hospital when you were questioning Bassan?”

Pyarelal Bassan was Mr Rao’s client, who was being tried for the murder of members of his family.

The judge, Mr Justice MacDuff, said he did not understand Mr Rao’s question. Mr Rao then asked the superintendent and the prosecutor whether they understood the question, and they answered in the affirmative.

But the judge asserted that he did not. After some back-and-forth, the judge said, “It is ‘aa-tmosphere’ not ‘atm-oo-sphere.’”

LOST HIS COOL

Mr Rao remembers losing his cool.

“My Lord, I thought we were conducting a murder trial and not an English language class,” he told the judge.

Hearing that, the New Zealand-born judge reportedly threw his wig on the table in a fit of anger and said, “You, young man. You will come and see me in chambers.”

At the chambers, the judge demanded an apology, which Mr Rao made after telling him, “If at the end of it you are going to convict my client, I don’t want him to think that it was because of the hostility between you and me.”

But afterwards, his relationship with the judge became more cordial, though most lawyers at the time would go to the extent of asking their friends to face Justice MacDuff on their behalf.

Bassan had killed his wife and children because he had fallen in love with a nurse. Apparently, the wife was very beautiful and so the public was curious to see who the nurse was – expecting her to also be beautiful. But in walked a woman who was short

and overweight with pockmarks on her face.

The judge, upon seeing Mr Rao at a cocktail party that evening, told him, “If not for anything else I will hang your client for his taste in women.”

And Mr Rao responded: “Judge, I won’t blame you.”

Lawyers feared appearing before Justice MacDuff. One lawyer, a Mr Patel, once put on his best black jacket and pin striped trousers, and, unfortunately, a pink vest. The judge kept saying “I can’t hear you” whenever Mr Patel tried to speak – until a

prosecutor told the lawyer the judge was offended by the pink vest. He hurriedly left the courtroom and came back after putting on a black vest.  When he returned, he  stood up to say that he appeared for the accused.

The judge noticed that Mr Patel had forgotten to zip his trousers.

“Yes, I can now hear you but if I were you I would not open my brief so early in the trial,” he told the lawyer.

Such was the atmosphere in the courts during the early 1960s, which were the formative years of Mr Rao’s career, the 80-year-old, who has been practising for just over 55 years and leading a team given the task of cleaning up the Judiciary in the last four

years.

STRICT VIEW ON TEMPERAMENT

Perhaps with the memory of MacDuff and how lawyers feared appearing before him, one of the areas that the Rao team has been looking at is the temperament of the judges and magistrates. And a number of them have been sent home for being too abrasive.

“We took a very strict view on temperament. And that has resulted in total change in the Judiciary. Now when you walk in, you find a judge or magistrate very friendly,” he said.

Currently, Mr Rao’s team is winding up and it has not taken any new matter since December 31, 2015. By April 30, they should have finished all their work.

Mr Rao spoke to Lifestyle at his home in Nairobi’s Muthaiga, at a time when the cloud of corruption hovering over the Judiciary is yet again getting heavier and darker following a Sh200 million bribery allegation against Supreme Court judge Philip Tunoi.

The judge and Nairobi Governor Evans Kidero, who is claimed to have given out the money to influence an election petition, have denied the allegations ahead of the formation of a tribunal to look into the matter. 

Mr Rao, who opted not to comment on the Justice Tunoi issue, said unless there is a continuous mechanism to vet judges and magistrates without considering when they were appointed, the dragon of corruption in the Judiciary will not be slain.

“Those who didn’t go through us were the new appointees and that’s where most of the corruption is today — not with those that we dealt with, but the new ones,” he said.

But the Mr Rao who spoke at Muthaiga was way different from the no-nonsense man whose appearance at press briefings often means some people losing jobs, others escaping with a warning or facing further investigation. 

This was a Mr Rao doling out stories like a grandfather would to his grandchildren, laughing heartily as he recalled some of his past moments.

For a moment, you would not think this was the same man who was for 14 years a prosecutor in the office of the Attorney-General (AG) when some of the most volcanic criminal cases in Kenya’s history were waged in court.

In 12 of the 14 years he spent at the AG’s office, starting from 1970, he was the Assistant Deputy Public Prosecutor under James Karugu. He left when he was the Deputy Public Prosecutor. At the time, the AG was the prosecutor.

ON THE SPEED DIAL OF TOM MBOYA

As Mr Rao let memories flow freely, you would not imagine this was the African-Asian who in the 1960s was on the speed dial of independence hero Tom Mboya, who was assassinated in 1969. He often received calls from the famous pan-Africanist to

represent in court people who had been arrested for flying the colours of the Kenya African National Union or an offence related to the clamour for freedom.

In later years, Mr Rao also attracted the attention of then President Jomo Kenyatta. One incident involved the President, University of Nairobi students and chapati. This was a story of how, as the assistant DPP, he once “defied” Kenya’s first president over

the fate of university students who had been arrested for demonstrating for not being served chapati.

About 68 students were arrested and the President told his legal team to ensure they were jailed. At this time, Mr Charles Njonjo was the AG and Ben Gethi was the police commissioner.

“In those days, we didn’t have the sophisticated (suspect identification) equipment. So, when Njonjo went to Kenyatta, the President said, ‘I want those fellows inside. Tell Rao’.”

“So, Njonjo comes to me and says this is what the President has asked. So I said, ‘But sorry, AG. There is no evidence. What am I going to prosecute them with? They are just 68 or 70 picked up and taken there. If they plead not guilty, there is nothing we

can identify and say ‘this chap was in that thing’. 

The AG wondered who would give this information to the President, and decided Mr Rao would. “So he arranges for me to go to State House. Then he’s already briefed the President. I walk in. And the President says, ‘You have defied me! You are refusing

to accept my orders!’”

Then Mr Rao reasoned with Mzee Kenyatta to have the students released, a plan that changed the President’s mind and made him light up.

RELEASED STUDENTS

He retold how the President drove to the UoN students’ quarters to “celebrate” with the students who had been released — the same ones he wanted jailed moments earlier.

“And he was now standing in his open car, flying the whisk, very popular. They were greeting him. I think I should have been in the car behind him,” he said, amid laughter.

He would have a similar meeting with then President Daniel Moi, when he disagreed with his boss on the trial of Joe Muthemba, a businessman who was facing accusations of plotting to overthrow the government.

Mr Rao said he tried reasoning with Mr Moi and Mr Karugu on why Mr Muthemba should be charged with sedition and not treason. He lost the argument and later, the treason charge failed in

court, which made Mr Kaguru resign as the AG.

After the aborted 1982 coup, as President Moi fell out with Mr Njonjo over claims that the latter was a traitor, Mr Rao told Lifestyle, he became a target for elimination due to the perceived

closeness to Mr Njonjo.

That is how Mr Moi ended up moving Mr Rao to head the Business Premises Rent Tribunal then in 1984 sent him to The Hague to represent Kenya in a tribunal set up to hear a dispute

between the US and Iran.

The tribunal was created following the Algiers Accord of 1981 between the United States and Iran. The agreement was signed to solve a crisis in which tens of Americans were held hostage

for 444 days after Iranian students took over the American

Embassy in Tehran in support of the Iranian revolution. One of the provisions in the agreement, which was brokered by Algeria, was that no-one would seek redress in court, but air grievances through the Iran–United States Claims Tribunal.

“[Mr Moi] said, ‘We have this request from overseas to send someone as an independent arbitrator to join the panel of arbitration between Iran and US. And it would be an honour for you, it’ll be an honour for Kenya, I have you in mind. Will you go?’ So I

said, ‘Mr President, you want me to go? I’ll go.’” Mr Rao told Lifestyle, adding that the assignment sent him to “political exile”.

He would stay at The Hague for 12 years. He returned briefly in 1984 to testify before a committee probing Mr Njonjo and, on leaving Parliament’s premises, his diplomatic passport was taken. He returned to Netherlands with an ordinary passport.

At The Hague, Mr Rao was the head of one of the tribunals hearing claims resulting from the US-Iran conflict.

“I was put in charge of what they called small claims, which are more private claims (from people) like teachers, architects, another who had served and had not been paid — all that kind of thing,” he said.

THE IRANIANS

But the assignment would end acrimoniously. He said he left before his term because the US was not happy with the way he attended to Iranians.

“Almost all Iranian claims were dismissed, because of procedural problems, even before I went there. So, the only claims we had, were the American claims against Iran, and not vice versa. I said it’s unfair. Just because they were not filed in time or something like that, we have a tribunal here which can’t hear. If we are going to hear Americans, why not Iranians?” Mr Rao asked.

He returned to Kenya in 1996 from The Hague and 16 years later, the Grand Coalition government gave him the task of cleaning up the Judiciary.

Mr Rao said he comes from a very small community in India — the Saraswat Brahmins — which he said has about 24,000 people globally. That, he noted, may have made some in Kenya’s Asian community to oppose his appointment to chair the vetting board.

“I come from a very small community of Indians. I’m not a Shah, I’m not a Patel,” he said. “I found that the only objection they (Parliamentary committee vetting him) had was from the Asian community.”

KENYA'S FRIENDLIEST PRESIDENT

In the course of his vetting work, he said, he had been amazed by how the political class had let him do his work.

“When I was DPP, we always had pressures in sensitive political cases from the state. But as chairman of the vetting board, I have not been asked, influenced, by anybody. Which is remarkable,” he noted.

Still on the political class, Mr Rao believes Mr Uhuru Kenyatta is the friendliest president Kenya has had.

“When I (first) met this President, I came and told my wife that he doesn’t even make you feel that you are talking to the President. He is so casual; just like you and me now talking. Whether he does it with everybody, I don’t know. But with me, he does,” said Mr Rao.

He added: “(There are) Three things I admire: his casualness, his friendliness, his articulation … when (US President) Barack Obama came, I thought he was better than Obama. Whenever they shared a platform, he (President Kenyatta) came off better,” Mr Rao said.

Intertwined with Mr Rao’s story as a lawyer is the narrative of him as a sports enthusiast.

He used to play cricket and golf, but for decades he has also been involved in sports administration and arbitration. 

For instance, he was the leader of the Kenyan team that went to the Commonwealth games in 1974. He has also been a member of the Court of Arbitration for Sport, the honorary legal advisor to the National Olympic Committee of Kenya, the chairman of the Centre for Resolution of Sports Dispute, among others.

“I became legal advisor to the Commonwealth Games Federation in 1982. And I was legal advisor until August last year when I stepped down and I was elected honorary life vice-president of Commonwealth Games Association which I now have,” he said.

Currently, he is involved in the investigation on three suspended Athletics Kenya officials over allegations of corruption or covering up doping offences.

“They’ve all responded. I’m in touch with Nike because there are allegations that Nike funds were diverted for personal use. I’m in touch with Qatar, where the allegation is that Qatar gave two vehicles to one or two of its officials to influence the 2019 vote,

so I’m waiting for that. As far as the athletes are concerned, I’ve got a number of statements now,” he said.

THE FAMILY

Mr Rao has been married to Leena since 1963 and they have two daughters, both lawyers. They live abroad but come home at least twice every year.

“It is a ritual that every Christmas they come here,” he said of his two daughters who have borne him five grandchildren.

It is his wife, he said, who sometimes insists that he eats lunch, a meal he is not very keen on.

“I’m there (in the office) at 9 am till 4.30 pm. And I don’t go out for lunch, I don’t go out for coffee … and that’s the discipline I had even as DPP; that I was there on time and left on time,”

he said, after which Lifestyle asked him if he eats his lunch in the office.

“My wife insists. So, she gives me a sandwich or something. But I don’t even go out of office,” he said, noting that his diet is largely vegetarian though he has chicken as one of his favourite

meals.

To keep fit, he prefers a morning walk lasting 15 to 20 minutes. And when the vetting board’s term expires, Mr Rao may have more time to do his walks or co-ordinate the activities of the

residents’ association that he heads. But is he ready to take up any other public service job?

“It would be up to them (to assign me). Whether it is a tribunal or if there is some other parastatal or something like that. If the President thinks that Rao has done a good job and is suitable for

more, it could be. At the moment, I’ll be jobless after this,” he said with a loud laugh.