Standoff as lawyer demands court to conduct proceedings in Swahili

There was a standoff in the Milimani High court on Tuesday, June 20, 2023, when a lawyer demanded proceedings be conducted in Swahili language.

Lawyer Harrison Kinyajui, who represents activist Enock Joseph Aura, demanded Justice Lawrence Mugambi of the High Court Constitution and Human Rights Division to conduct the entire proceedings in Kiswahili language, and also record the proceedings in the same language.

This is after the Judge had begun by addressing the parties in the English language although the petition by Aura is fully expressed in the Swahili language.

While protesting the move by the judicial officer, Kinyanjui stated that the petitioner had properly invoked Article 7 of the Constitution of Kenya as well as Section 34(1) of the High Court (Organization and Administration) Act as read with Section 39(3) of the same Act, which recognized the languages of the High Court as Swahili and English.

This was met with opposition from both Justice Mugambi and the Advocates representing Attorney General Justin Muturi and Chief Justice Martha Koome, who addressed the Court in English.

Kinyanjui declined to accept addresses in the English language and insisted that the court ought not to record anything said by the AG and the CJ in the English language since such an act was in itself a violation of the petitioner’s rights to be treated with dignity, having elected to file his case in Swahili language.

The State Counsel, a Ms Mutindi, informed the Court that the Attorney General had raised a preliminary objection to the drafting of the Constitutional Petition in the Kiswahili language as Section 83(2) of the Civil Procedure Rules did not permit it.

But Kinyanjui stated in the AG filing documents in the English language while the Petition is framed in the Kiswahili language, he was in violation of Article 7 of the Constitution of Kenya, which was supreme to all other laws.

The judge, on his part, addressed the parties in the English language, at which point lawyer Kinyanjui requested Justice Mugambi to recuse himself from the case if he was unwilling, or unable to express himself in the Swahili language, and hand it over to any other judge who was proficient in the Swahili language.

The petition by Aura is the first constitutional case in the country to be fully drafted in the Swahili language.

The Swahili petition seeks various orders that have far-reaching implications on the judiciary and public service in Kenya if allowed by the court.

Aura insists that the Chief Justice has broken the law in enacting Regulations that bar Advocates and litigants from conducting their cases physically in the Courts across Kenya, and that she violated the Statutory Instruments Act by making up rules that demand only online Court sessions, without any form of public participation.

The Advocate for the Chief Justice also addressed the Court in the English language and supported the position taken by the Attorney General.

Justice Mugambi insisted that he was unable to conduct the proceedings in the Swahili language as sought by the petitioner and attempted to have the file referred to the presiding judge in the division for re-allocation to a new judge.

But Petitioner’s lawyer Kinyanjui protested the move insisting that 77 days after the petitioner had filed the case in court, no action had been taken to move the case forward.

He insisted that the move by the court was equally unwarranted as the Judge ought to be proficient in the Swahili language and that the Advocates of the Chief Justice and the Attorney General had trivialized the proceedings to the point of laughing in Court.

The judge however adjourned the case to July 19, 2023, for the Deputy Registrar to secure the services of a translator in the case

Kinyanjui being dissatisfied with the decision to adjourn the case insisted that no one had sought the services of a Kiswahili language translator, and that it was wrong to translate the proceedings from the Swahili language to English or vice versa, since Article 7(1) of the Constitution of Kenya designated Swahili as the national language.

The Attorney General’s lawyer then stated to the Court that Kinyanjui was pretending not to understand what was said by them in the English language, and insisting on conducting the proceedings in the Swahili language yet (according to the AG) the Petitioner ought to receive the translation of the proceedings from his lawyer.

In a twist of events, the petitioner’s lawyer Kinyanjui sought the Court’s permission to address the Attorney General’s lawyer in English, and with impeccable English, Kinyanjui elaborately stated the basis of the Petition was a Constitutional declaration of Kiswahili as the national language, and he asked the Attorney General and the Chief Justice to hire translators before attending Court on the case.

Kinyanjui stated that by taking up the proceedings in the English language while the documents were in the Kiswahili language it is the AG and the Chief Justice who were pretending not to know the Kiswahili language and were violating Article 7 of the Constitution of Kenya.

In what turns out to be a landmark case in the Kenyan Judiciary, the Petition presents an interesting array of protagonists and a fight for the use of the Swahili language as a medium of Judicial decisions in Kenya.

Article 7(2) of the Constitution of Kenya designates Kiswahili and English as the official languages in Kenya.

In his petition, Aura says he is aggrieved by the Judiciary’s failure to embrace use of Swahili as official language in court proceedings stating that judges and magistrates insist on use of English.

Aura says that even in instances where a litigant chooses to use Swahili to answer charges or testify in court, magistrates and judges record the testimony in English language without seeking consent of the litigant which is contrary to the Constitution.

“All cases in Kenyan courts are recorded via colonial language (English). Whenever any litigant elects to answer criminal charges or testify in court in Kiswahili language, invariably magistrates and judges at all levels of courts (and without the consent of the accused or pleader in a case) unilaterally assume the position of an interpreter to translate and copy directly in English the evidence given in court through the Kiswahili language,” he says.

Aura claims that it is a violation of a Constitutional right for a magistrate or judge to record the proceedings in a language that a litigant said he/she does not understand better.

“Any Kenyan in such circumstances is ultimately denied a record of the accurate evidence he gives directly in testimony before the court in Kiswahili language. Not the evidence recorded as a translated version,” he says.