Former Speaker Francis ole Kaparo.
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Francis ole Kaparo as a lawyer: Unreported horrors of law and the DC who didn’t care

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Former Speaker Francis ole Kaparo.

Photo credit: File

By the time I started practising law in Nyeri, Kenya had begun to take shape as a land where the law felt like a tool in the hands of the ruling elite, used solely to keep the masses in check.

I recall a notorious case I took about a year into my legal practice. It was in the Wajir area. The then District Commissioner was a brutal man, who had incessantly sought ways to end the sale of miraa or khat in the area and was going to do whatever it took to end the trade.

To his credit, he looked in the statute books to see if there was any legal provision he could rely on to issue a sweeping ban on miraa, but couldn’t find any.

The one that came the closest to reflecting the spirit of his intentions was an inapplicable provision that banned anyone from coming to within 10 kilometres of the Kenya-Somalia border.

Insisting the northern area was a restricted area, being a war theatre for shifta activities, he relied on the dubious law to issue a ban on miraa and instructed his Administration Police to arrest anybody caught ferrying the substance.

In compliance with that order, security officials in the area arrested people caught with miraa as far as 100 kilometres away. How they judged a suspect’s intent to proceed to the border from as far away as 100 kilometres defied any logic, but the DC was unmoved. He sneeringly warned he didn’t care about those Nairobi laws. Hapa sio Nairobi!

Because of the oppressive manner in which he handled his office, our distressed client retained us to slow him down. He was the local magistrate: he made the law, he executed it and he enforced it. Three in one!

We tried.

We went to the High Court and obtained ruling after ruling against him, but he never gave a damn. He acted as though he was above the law.

When we got sufficiently outraged over his scornful attitude to the rulings, we had him cited for contempt of court and he was eventually transferred from the area.

Face to face

In the subsequent cases I litigated as a criminal defence lawyer, I came face to face with the unreported horrors of the law in my country. I ran into cases of people locked up for murders they never committed, thefts they had nothing to do with, and robberies where a wrong party took the fall for someone better connected.

The injustices I saw made me wonder whether the law was invented to enhance justice or to defeat it. As an ethical arbiter of justice, sworn in to uphold the highest standards of legal practice, I felt deeply saddened by the emerging narrative of thoughtlessness and total disregard for ethics in our conduct.

And though I focused on the legal profession, I was aware that in other areas as well, unethical officials had become just as careless and as corrupt.

The disregard officials had for people’s lives was stunning. In our hospitals, the sense of decay was creeping in as the trailblazing institutions left behind by white doctors succumbed to lack of imagination, lack of drive and open nepotism.

In our churches, ministers of the gospel departed from the uplifting narrative of love, propagated in scripture, as ethnic favouritism and other condemned vices took centre stage.

In schools and other sectors of development, ethics hit the lowest ebb as the new mantra became ‘my turn to eat’.

The runaway corruption and disregard for best practice, witnessed at the national level, was the sick inspiration shrewd officials in rural areas needed to justify cruelty, callousness and blatant theft.

It is a systemic problem that the founding generation passed on to us; and we passed on to the next generation. This next generation appears to have perfected the vice.

Thus, as one looks at Kenya today, under devolved governance, what one sees is the coming to fruition of seeds planted by mine and the founding generation, immediately after independence.

Majoritarian approaches

A lot of us did our best, and are to be commended for working hard, but when one looks at the progression of discourse in the nation, the emerging picture points to failure on our part.

We became overpowered by systems and majoritarian approaches, which drove the nation in a direction no one could individually stop. The ship of state became too wily a monster for any one individual to tame; we watched in awe as it rolled on.

We are thus harvesting tribalism, thoughtlessness, cruelty, unethical conduct in offices big and small; and lack of regard for what is right.

We have come to a time and a place where raw corruption is celebrated and even protected by tribe. We are in the uninspiring era of anything goes as long as it benefits me.

Given the grim scale of decadence, it takes bravery and faithfulness to one’s conscience to remain ethical in the new Kenya.

It was because of our ethical standards that the firm Ole Kaparo and Waweru Advocates became well regarded in Nyeri and the region. In the decade we practiced law there, we built a winning reputation and were retained by clients in Nyeri, Embu, Meru, Isiolo, Nanyuki, Nairobi, Samburu, the Rift Valley, the greater Mount Kenya area, and North-Eastern Province.

Our goal was to do our small part in restoring the faith of Kenyans in the justice system in the land. Indeed, even though the situation was already becoming dire, we could never have imagined that one day a future Kenyan Chief Justice would be so discouraged as to warn that the nation had become a bandit economy.