Justice Madan fondly remembered

Next year, 2012, will be the centenary of Justice Madan’s birth. It is right therefore that we should be thinking of his immense contribution to the political and legal history of Kenya, and reflect on his legacy as a homegrown Kenyan jurist of the highest order.

Having been born and brought up in colonial Kenya, he had of necessity to navigate his way around the racially divisive and stratified structures of that society, which both highlighted and circumscribed him in his Indian ethnic identity. Despite such limitations, Justice Madan remained a secular, non-sectarian, nationalist at heart throughout. It was his sense of being rooted in the land, coupled with an innate humanitarian instinct that shaped his outlook and actions during a long and distinguished career that spanned half a century.

Born in Nairobi on 11 November 1912, he was educated at the then Government Indian High School (later the Duke of Gloucester and now the Jamhuri High School), after which he went to England to read law. He was called to the Bar by the Middle Temple and on his return to Kenya admitted as an Advocate of the High Court in 1936 and began his law practice in Nairobi. His exact contemporaries were other legal luminaries like J M Nazareth QC, D N Khanna and Sir Amar Maini (before he moved to Uganda in 1939), while others, like J Sorabjee QC and S N Mangat QC were already established before he came on the scene. All these names featured prominently in the law reports of the 1930s and later years.

It was no surprise then that, as a highly successful advocate, he was appointed a QC (Queen’s Counsel) in 1957, joining the select band of colonial ‘silks’ of his vintage. He was also to serve two terms, which at that time was unprecedented, as President of the Law Society of Kenya, first in 1956-57 and then again 1960-61. Immediately afterwards, he was appointed the first non-white judge of the colonial High Court in 1961. On the political front, Justice Madan had the distinction of serving as an elected member of the Legislative Council (Legco) continuously from 1948 to 1961, and to hold ministerial office for six consecutive years from 1955 to 1961, the last five as Minister without Portfolio. He was also active in a whole range of local, community and civic affairs and thus thoroughly grounded in the public service ethos at all levels.

With these credentials, he was to bring to the bench a measure of maturity and experience from the practising bar that was extraordinary in those days, when the judiciary was entirely composed of British colonial legal service career appointees in the bureaucratic mould. Many of them stayed for short tours of duty, on their way either to or from other jurisdictions, and were unfamiliar with life and conditions in the colony. Justice Madan however, with his huge hinterland of wisdom, learning and local knowledge, was soon to prove himself invaluable as a fair-minded and legally sound judge, and in no time earned the respect and admiration of lawyers, litigants and the lay public alike, but not, alas, of the new, emerging post-colonial establishment!

Kenyan legal historians, professional practitioners and academic and media commentators have been generous in their appraisal of Justice Madan’s unique place in the judicial landscape of Kenya. Indeed, the very first issue of the Nairobi Law Monthly in September 1987, under the editorship of the renowned civil rights lawyer Gitobu Imanyara, had Justice Madan’s picture on its front cover, and led with an article entitled ‘The Wisdom … and Wit of a Great Judge’, opening with these words: ‘Before his retirement … Justice Chunilal B Madan bestrode the Kenyan judicial landscape with unequalled brilliance’. After a brief biographical sketch of him, it went on: ‘In this inaugural issue we pay tribute to a great judicial mind by producing excerpts from selected judgments and rulings’. There then followed three pages, in close print, of a collection of these gems, full of both rhetorical flourishes and deep underlying meanings. They display a deep sense of justice, tempered with law, equity and humanity. Here is an oft-cited one from a 1979 case in which Justice Madan set out his vision of an ideal judge that would appeal to this magazine’s broad general readership:

‘A judge is a judge whether he is newly appointed or an old fogy. The former, has the benefit of his latest learning, the latter the advantage of experience. Both are men of honour and scholarly gentlemen.

‘Both are conscientious and judicious individuals imbued with reason. Both are dependable and do not make wild surmises. Both act upon consecrated principles. Both get a fair share of juristic skills. Both are jealously scrupulous and impartial. Both are 24-carat gold. Both act free from doubt, bias and prejudice … Both speak no ill of any litigant. Both are torchbearers for stability of society. Both are strugglers for liberty.’

In a related piece in this issue, I examine the politics of judicial appointments in the first decade of Kenya’s independence. Suffice it to say here that, embodiment of justice that he was, Justice Madan himself was denied justice, in having been passed over for the post of Chief Justice until he had almost reached retirement age! Let us fast forward from 1961 to 1985. In the intervening two and a half decades, he was made to plod on, from newly appointed to the most senior serving ‘puisne’ judge, a position he had in fact arrived at by the early 1970s, and even elevated to the Court of Appeal as an appellate judge. Yet, he had to watch his more junior or less meritorious colleagues promoted over him several times, to be denied the ultimate prize, not so much coveted as justly deserved, of the headship of the judiciary! Even then, it was a grudging acknowledgement, for initially he was appointed Acting Chief Justice in October 1984, and only confirmed in that post in October 1985 to reign for just over a year until reaching the compulsory retirement of 74 in November 1986 - no ad hoc extension for him, as had been granted to one or more of his predecessors! By the standards of judicial service in other Commonwealth countries, and even in the history of Kenya, this had turned out to be an inordinately long wait.

This is how Paul Mwangi, the leading academic commentator and legal campaigner, put it in his 2001 book ‘The Black Bar’, a damning indictment, if ever there was, of ‘(c)orruption and political intrigue within Kenya’s legal fraternity’ during the long years of the Kenyatta and Moi presidencies:

‘Chief Justice Madan’s appointment as head of the judiciary was long overdue by 1985. Former Chief Justice Sir James Wicks said to him on appointment: “I have known you over the years, and it would have served the judiciary better had you taken over from me”. That would have been in 1982. But Sir James Wicks was too self-praising in his compliment. The truth is that it was Madan and not Wicks who should have assumed the post of Chief Justice in 1971. Only the politics would not allow it.

‘President Kenyatta and President Moi were both scared of Justice Madan. His performance as a lawyer, politician and puisne judge revealed an independent minded revolutionary whose deeply religious and conscientious character promised the Presidents a Chief Justice they could not control. None ever intended to appoint him as Chief Justice.’

(As an aside, it needs to be said that Mwangi’s choice of the term ‘religious’ was probably a zealous misnomer for ‘spiritual’. If Madan had any religious convictions at all, he certainly never allowed them to overtly influence his thinking or behaviour).

Nevertheless, President Moi was constrained, almost shamed, into appointing him for, as Mwangi tells us, ‘(i)t would have been an abomination to appoint any other person to the post in the face of Madan’s seniority’, adding that Moi ‘must have reasoned that one year was too short for Madan to cause the government any problem’.

But, Mwangi goes on, President Moi ‘was very mistaken’: ‘Madan had the chance to bite only once, and he bit very deep’!!

He then explains how this came about, in the case of ‘one of Kenya’s leading businessmen – Stanley Munga Githunguri’. In brief, he had years before been investigated for alleged exchange control violations but in 1980 the Central Bank informed him in writing that he would not be charged and that the matter had been closed. This was subsequently confirmed by the Attorney General (Charles Njonjo) in Parliament, but four years later a successor of his then nevertheless instituted a criminal prosecution against Githunguri. Needless to say that beneath the surface, as ever, lay a complex web of political intrigue and personal animosity. In terms of legal niceties however the basic issue that arose touched on the constitutional guarantees of speedy justice and a fair trial. And so, when the matter came up before a panel of the High Court, by then presided over by Chief Justice Madan, through a somewhat convoluted route, he rose to the occasion and delivered, according to Mwangi, ‘one of the most eloquent speeches ever to emanate from the Kenyan bench’ thus:

‘These proceedings have put our Constitution on the anvil. They are the subject of considerable notoriety. They will become a milestone in the legal history of Kenya. The country is watching us. Africa is watching us. Other countries outside, some with their own peculiar systems of administering justice, are waiting to see how we will decide this case.

‘We … speak knowing that it is our duty to ask ourselves what is the use of having a Constitution if it is not honoured and respected by the people. The people will lose faith in the Constitution if it fails to give effective protection to their fundamental rights. The people know and believe that destroy the rule of law and you destroy justice, thereby also … society. Justice of any other kind would be … shocking … The ideals of justice keep the people buoyant. The courts of justice must reflect the opinion of the people.

‘We are of the opinion that to charge the applicant four years after it was decided by the Attorney-General of the day not to prosecute and thereafter also by neither of the two successors in office, it not being claimed that any fresh evidence has become available thereafter, it can in no way be said that the hearing of the case by the court will be within a reasonable time as required by the Constitution.’

After further elaborating on the application of the legal principles involved, and holding the prosecution to be an abuse of the process, he pronounced the decision of the court in this dramatic fashion:

‘Stanley Munga Githunguri. You have been beseeching the court for an order of prohibition. Take the order. This court gives it to you. When you leave here raise your eyes up unto the hills. Utter a prayer of thankfulness that your fundamental rights are protected under the juridical system of Kenya!’

There might well have been a touch of the hyperbole in Madan’s strictures on the importance of the case in the wider context as he rationalised it, but equally, as a veteran lawyer-cum-politician-cum-jurist, he was also seizing an opportunity, in the name of the people, to point to the potential for popular discontent with an increasingly authoritarian nature of Moi’s regime (remember, this was in the mid-1980s, before the end of one-party rule)! He was a democrat, a people’s judge, through and through, and wanted to assert the supremacy of the rule of law.

Madan’s concern for a republican form of government where the people were the prime object and beneficiaries of constitutional safeguards was nothing new. Way back in 1958, while holding office as a minister under the colonial administration, he was to state this in these forthright terms:

‘The Constitution of Kenya is of vital interest to the Asian community, and it is because the Asians are strongly embedded here and they feel securely entrenched. The first point therefore to remember is that Asians are an integral part of the indigenous population of the Colony. I am aware, Sir, that this has been said before, but if need be, I will say this a hundred times more. It is important to bear that in mind because that can be the only starting point for any negotiations. There can be no other honourable basis for negotiations as far as the Asian community is concerned. I would not embark upon any negotiations with a sense of fear in my heart, whether as a result of overwhelming numbers or because of any position occupied by any particular community. Neither would I make a demand for any privilege which is not conceded to the common citizens of the Colony. This is my opinion in this matter.’

That was on 12th November 1958 (just a day after his 46th birthday) in the debate that followed the Governor’s Speech from the Chair, at a time when the next stage of the Colony’s progress towards independence was being discussed. Madan had no doubt even then that any future constitutional settlement should be on the basis of a raft of provisions that applied to all citizens uniformly, even though the whole socio-economic-political edifice of the country had been constructed on a framework of racial differences. He was looking ahead. Later in the same speech, he repeated his call for unity on a platform of commonality:

‘But, alas, Sir, the various racial groups in this Colony live in a political vacuum. The Africans, the Europeans, the Asians all make demands and the Arabs sit watchfully at the window sill. But unfortunately, Kenya has not got enough political assets to meet all these demands. We must, therefore, I feel, work towards a reasonable distribution for all concerned. This is the only country as far as I know, Sir, where everybody extends the hand of friendship to everybody else, and yet we quarrel like cats and dogs.’

After chiding a European member for bashing down the Asian community and then endorsing a colleague’s call for cooperation (whose logic he could not understand, ‘it beats me’), he went on:

‘If you will permit me, Sir, I would like to repeat what I have said on a previous occasion. I think the real approach, the right approach, is the common approach to all problems so that the people of Kenya can travel together as good companions on a common road.’

He was thus clearly staking his claim as a mwananchi, as a son of Kenya, who identified himself with and wished to play a part in the future of his country. He always strove to practise what he preached, and thereby earned the respect of all those who had any kind of contact or dealings with him. This is borne out by the warm tributes paid to him and by how fondly he is still remembered by all and sundry, not just within the legal fraternity but in the wider community outside also. He was socially a very charming and gregarious person who enjoyed the company and conversation not only of fellow lawyers but of people from all walks of life. He was also a long-standing member of the Nairobi (formerly SVIG) Gymkhana where he used to mingle and play bridge with other members on an equal basis.

But beneath his quiet dignity, Madan had both a certain steeliness to his character and a determination to fight injustice. An example of this, when he was at the peak of his legal and political career in the 1950s, is alluded to by Anil Madan in his piece elsewhere in this issue. That was part of the legal folklore of my generation. The ice cream parlour incident happened around the time when the Civil Rights movement was getting under way in America, and it is reasonable to suppose that the Asian middle and professional classes were inspired by what was going on there, quite apart from the fact that the Indian community had always been in the forefront of the struggle for equal treatment and thus a thorn in the side of the European ruling elite in Kenya.

I too can relate another, more nuanced, instance of Justice Madan’s inner but well-controlled anger towards historical wrongs. Once at a party in Nairobi, I was going on, in my youthful exuberance, about how the Indians had allowed their country to be colonised and exploited by foreign invaders in past centuries, when all he said, metaphorically raising his eyebrows, was, ‘Is that so? Was there no resistance?’ – the purport of which was to make sense to me years later!

I had occasion to appear before him as a judge only three or four times. In one civil case I was pitted against the veteran lawyer D N Khanna, in which Justice Madan gave a judgment in my favour, laying down certain legal propositions considered important enough for it to be reported in the official law reports (1972 EA 560). But later I was fortunate and privileged to get to know him on a personal level largely because, I like to think, he was impressed with my activism within the Law Society and on quasi-public issues through newspapers and otherwise. On the eve of my emigration to the UK, he gave me a glowing testimonial in his capacity as Senior Puisne Judge in case I needed to use it here, and afterwards we kept in touch. Whenever he was in or passing through London, we would meet up for a meal or have a chat.

The Nairobi Law Monthly described Justice Madan as ‘(a) soft-spoken man whose gait betrays Ghandhian frailty as he strolls from a coffee house in the City Centre to his Prudential Building office’. That is exactly how I remember him when we last met, on Nairobi’s Mama Ngina Street, during my 1988 visit. That was also the time when I asked him if, now that he had retired, he was going to write his memoirs, to which he gave a non-commital reply. But in retrospect, it seemed to me that in his twilight years he was probably exhausted by the sheer weight of the full life he had led and that posterity would have to be content with his speeches, judgments and other writings as a record of his output. What shines through them all is an underlying moral force and intellectual integrity.

It would be wrong to give the impression that his virtuosity had no bounds, because he certainly was capable of losing his equanimity in certain situations, especially where the law was being used to perpetrate or justify some injustice or other, though his judicial temperament was rarely disturbed by the sort of outbursts and lapses that one often sees in other judges. He treated everyone with courtesy and consideration, and in turn was held in high affectionate regard. He was particularly kind and helpful towards young lawyers. No judge however is perfect, and so his judgments were sometimes appealed, if that was possible, or came under critical scrutiny. In the Githunguri case, he certainly did stick his neck out, to throw a gauntlet at the Moi Presidency, but according to a blog posted by African Press International on November 2, 2009 he had been wrong not to uphold the claim of Raila Odinga earlier in the same year (1986) challenging the constitutional legality of his first detention in 1983. It is not known whether this was a mere partisan or commonly held view, particularly as the precise point of criticism was not explored with clarity, but it just shows what a delicate path judges have to tread in a politically sensitive culture such as that of Kenya.

Paul Mwangi likened Justice Madan to Lord Denning, the pre-eminent English judge of the last century; the big difference however is that whereas Denning’s fall from grace came within his own life time, Madan’s good name has passed into the history books of Kenya as an unblemished icon, and that is how he will surely be remembered for years to come!

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* Ramnik Shah practised as an advocate in Nairobi for 10 years from 1964, and was vice chairman of the Law Society of Kenya for 1973/74. After settling in Britain, he practised as a solicitor there for 30 years from 1975 and following retirement continues to write as a critic and commentator in various forums and as a member of the editorial board of the London-based Journal of Immigration Asylum and Nationality Law.
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