Greatest danger is when liberty is nibbled away in bits by men

Saturday March 04 2023
Senior Counsel Pheroze Nowrojee

Senior Counsel Pheroze Nowrojee. This is a Kenyan lawyer who has lived a full life of legal soldiering for causes he believes in. PHOTO | FILE | NMG


Every once in a while, you come across a person of such exceptional qualities that you wish you could share them with the rest of humanity, at least those you can interact with. This past week I was lucky to meet and interact with such a man: Senior Counsel Pheroze Nowrojee, 83.

This is a Kenyan lawyer who has lived a full life of legal soldiering for causes he believes in and whose life, work and thought should inspire many for his tenacity, clarity and energy. In an engagement with young lawyers in the region Pheroze cut the very figure of the kind of legal pugilist you want in your corner when the bell goes and the fight is signalled. Nimble, supple and light on his feet, he is also a poet, a water colour painter and an avid reader of literary works in his spare time.

With a long and illustrious legal career, he traces a line of constant, conscientious contention with repressive legal and judicial systems he has encountered, from the dark colonial era right to today, laying bare the fact that in terms of people’s freedom and liberty we have not travelled very far, and much remains to be done.

By bringing up such cases as Kapenguria – Jomo Kenyatta and five others; Moncada – Fidel Castro and comrades; and Rivonia – Nelson Mandela, Walter Sisulu and others in one legal conversation, he teases out the interconnectedness of peoples’ struggles across the world, and shows how little has changed. The repressive orders that keep whole populations enslaved have changed in forms and style but the essence has always remained the same: the desire to dominate others on the one hand, and the opposite determination to overthrow that domination on the other.

‘Protection of public’

Regarding Public Interest Litigation, he deals with the concept of the “protection of the public” in which he has specialised, in a most eloquent way. Protection of the public, from whom? he asks. “Not from fraudulent tricksters or murderers or thieves. It is against those who violate the law by denying law itself, while pretending to be its custodians, by being among those who take office by law and then deny the supremacy of that law.”


This seems to be the case in most of our countries and political dispensations. Almost all of our rulers came to power through the ballot. It is useful to add that even those who have taken the route of military confrontation to attain power do swear to defend and protect the constitution once they attain power. Still, almost invariably, all of them do not see the constitution as worth any more than the paper it is written on.

Probably the most memorable of his appearances in court was when he led the challenge against Uhuru Kenyatta’s election as president in 2017, a case brought to court by opposition kingpin Raila Odinga, and decided in favour of the petitioner by Chief Justice David Maraga in an unprecedent judicial landmark.

More leeway

It is easy to say that the circumstances have changed since the days of the one-party dictatorship, with more leeway now allowed to courts of law to act according to the law and the judge’s conscience. Pheroze had taken on the state much earlier, when he challenged the ban on the Nairobi Law Monthly published and edited by prominent public interest lawyer Gitobu Imanyara, in 1991 during the Moi days.

Still, problems persist because there are many insidious ways basic rights and freedom can be chipped away surreptitiously while very few people really notice.

In a paper, Pheroze touches on the habit of rulers to subvert the foundations of rights and freedoms, not in large noticeable moves but rather “in creeping engagement by steps that usually go unnoticed.” This point had a special poignancy with regard to, say, an administrative step taken by government to ban a certain book or publication because it is deemed to be subversive of a sexual orientation thought to be repulsive to the public. Unnoticed in that case is that executive action to ban books and publications has been sanctified and can be used in future cases more ominously.

On such cases, Pheroze quotes Indian Justice H.R. Khanna, who warns that “the greatest danger is when liberty is nibbled away in bits and pieces under cover of objects ostensibly beneficial and by men apparently well-intentioned.” Pheroze adds that “it is the role of us counsel to watch, notice and timeously challenge such insidious attacks on the Rule of Law. The further danger of subsequent bad precedents arising from such amendments, and which precedents reinforce themselves by being in turn (unquestioned)”

He lauds the role of the Bar association in Kenya and holds it as a shining example of what law societies must do in defence of their peoples’ freedoms, and how synergies can be built between a conscientious Bar and a Bench that responds to the need to preserve, further and protect the integrity of our legal and judicial systems.

It is a paper in which Pheroze is critical of the Bench, especially when it becomes overbearing and disrespectful toward the Bar, but he states that the two branches of the legal system are called upon to work closely together in the protection and defence of their people’s rights and freedom.

Ulimwengu is now on YouTube via jeneralionline tv. E-mail: [email protected]