John Mugane: For those who don't know me. I'm John Mugane, I am at Harvard University. I’m a professor of African languages and culture. I have a program, I went there to actually found and direct a program, African language program. Yesterday I did try to say that it's puzzling in the world, I'm trying to explain to myself to first of all, the academia in the west and also here that our languages are not seen as having any possibility of being taught. They're always no enrollments, low enrollments and so on. I have a situation in which I'm at Harvard with 7,000 students, BU has … I don't know how many BU has, it's several tens of thousands. And they can't coble up even 25 students to learn these languages. At Harvard, on the other hand, we are having … We’re teaching several hundred. I think last, we taught 500 students these languages.
What is the difference? Why don't people take these things on? And why others just saying it's like learning French, learn how to read the train schedules and do all these other things. And I'm only saying that to say that once you deal with disciplines and the professions, we have to defend why language problem exist. And the only way we can defend them is to come here and actually say, “Look at what is going on with African studies.” Our languages are actually sources of knowledge. They are actually not just sources. They also the terminus of knowledge and sometimes also the reservoirs. There’s just a lot of work that is going on through our languages so that in the end … My particular prejudice over all these, you could call it that, is that we confuse intellectual production with the language of publication, not the language of actual deliberations and production of this work.
So with this in mind is why then I'm so thrilled to actually be able to indulge you with the school of law because, like I said yesterday, only the law profession summons all disciplines to itself to actually explain some things. And that's where, even though the CJ retired was saying you call yourselves learned and you're ignorant about all these things. Actually learnedness to me is actually being able to recognize that you need the other disciplines to come to you and so on. So I come here calling you learned, and therefore it is to listen to these things and to talk about this particular issue. I’ll be talking about languages and law … I mean law from language and particular issue that I've been fighting with, just to help us be articulate, help each other to be articulate about what you're doing.
With that long, long introduction, you can tell my enthusiasm and I like this format of doing the hoopla and the bells and whistles one day. Then the other day we sit in a room like this and really produce something that is intellectually going to push the agenda we had yesterday. So thank you very much.
Mbote: I'm Patricia [Kamberi 00:03:05] Mbote, I teach law here and I've been working with Professor Mugane and Dr. Nkatha in catalyzing this conversation here about law in language. And for me, I come from a critical legal school which believes that you cannot talk about diversity and then address diversity in one language. That when you admit diversity, there has to be things that … It's actually demanded of you that you bring in diverse languages. And I think from our point of view, having students of law learn that language is actually important. I remember when I was tasked with starting the Strathmore Law School and you needed to have eight university units and you choose from a number of them.
And I was of the view that students of law need to learn language. And actually, at that point, my ideas on why language were a little undeveloped and they were competing with; should they read the great books? Aristotle, Plato etc. So in essence, I think we as lawyers sometimes think language is just something that we use to communicate, not realizing that even in what we do, we can actually further the development of language. And this is why the discourse on law and language is actually a very dynamic and living discourse. It doesn't just talk about what do we do with law? Is legalese a language or should lawyers have an A in English or an A in Kiswahili or their parent tongue or family tongue, as I learnt yesterday. Their family language. So in essence, it is for us to become more critical about the things we learn and the way they introduce binaries in our lives because they’re certain things that we are only able to say in English.
And when you tell somebody to say the same thing in their family language, they are not able to say it. I find for instance, that when I use English, I have very little feta to what I say. And I use my family language, I am a lot more guarded in the things I say. Because there is, in my culture, something about not speaking of things of shame. And I'm saying things of shame translating directly from my family language. So in essence, what do we lose when we speak in English, both in terms of content, but also in terms of decorum and in terms of expression of who we are? So I do hope that as we study … as we share here, we get into a discourse that moves us to another level where we’re talking about language, not as a utility, but as something that's living and active.
Nkatha: I want us to just review some of what we came up with the last … During the last conference. Just for the record, this conference has been going on … This is the 10th African Languages in The Disciplines Conference. The last conference, the 9th conference, was held at USIU. And we decided we need to bring this conversation here to the University of Nairobi School of law. During that conference, the conference brought together lawyers, linguists, and other disciplinarians to begin framing the subject of the intersection between law and language. And more particularly, the tension ridden interface between legal expression and meaning. So when we were there, participants discussed the idea of language as a carrier of legal forms, the primacy of language in the process of lawmaking and interpretation and the resourcefulness of language in legal processes.
So critical questions that arose during this discussion was the need to decolonize the law, the need to divulgarise the law or to delegalese the law, deconstructing the law and indigenizing the law so as to secure it's transformative potential. So there were also questions of value ladenness of both language and law and the law itself being a very unproblematic concept. So the main question around which we organized the conference was what is the language question in law and how does our legal system deal with the multiple levels of linguistic articulation? And then how does language enrich or subvert law? And finally, how translation of law into local languages enrich local languages like Kiswahili? So for example, should we begin thinking about translating the Constitution of Kenya 2010 into Kiswahili?
Should the constitution be accessible in local languages? To what extent is there access to justice without the population actually understanding in a language that they speak? So in the course of the deliberations, we noted that it was necessary for us to critically interrogate the relationship between law and language in addressing the challenges, the governance challenges that we face in Kenya and in Africa, in areas of marriage, family, governance, religion and so on.
Then we also said that there's need for synergy between the workers in language. So we have workers in language, in medicine, in linguistics, in law, in anthropology, in sociology, even in engineering. When you're building the SGR, for example, there are all these different disciplines that need to come into play in order to make various decisions that affect the politics, the culture, and the economy of the nation.
It was also necessary for us to begin to encourage an interdisciplinary engagement that can help strengthen our understanding of the Kenyan justice system. Then we also said that we need to review and revisit the way legal definitions are currently constructed so that we can ensure that justice is accessible to everybody. Then we talked about encouraging comprehensive training in legal and constitutional interpretation. And we actually began this conversation yesterday with the debate between Justice Mutunga and justice … And Professor Githu Muigai.
Then we need to revisit and consider the place of Kiswahili and other languages in law. Then it was necessary to simplify the law in a manner that endeavors to capture the social and political context. Then to reduce communication barriers in the delivery of legal services. Then to begin talking about training professional translators that will ensure effective communication and that justice is served.
Then lastly, as part of the broader decolonization movement, we wanted to start a conversation that speaks about decolonizing the practice and language of law so as to ensure the realization of access to justice. So we concluded the last deliberation by saying that we want to really begin a conversation that ensures that we bring all this workers of language together and that what we need to do is build on what we did last year and the conferences before so that we can begin making material and real changes, policy changes, legal changes, and also educational changes that would ensure that this vision comes to fruition.
We talked about three main things that we wanted to do. The first thing was to institutionalize the law and language conversation. And what we meant by this is that all the institutions of educational institutions from Kenyatta University to Riara University, University of Nairobi, we needed to begin a conversation that will begin to institutionalize this law in language conversation.
And I'm happy to report with University of Nairobi School of law, we had that curriculum review. And within that curriculum review we have introduced a course on law and language. We were not able to begin thinking about having Kiswahili for lawyers yet, but we thought we would begin with the law and language course and then see where to go from there. Then we also talked about decompartmentalizing learning. The importance of ensuring that we begin to review our curriculum, so that we can invoke the law and language question in a more critical and nuanced way for lawyers, the lawyers that we are training, the future leaders of tomorrow. And lastly, we talked about the establishment of a journal on law and African languages. So we realized that there is an underrepresentation of African languages and that it was important for us to have a medium of critical reflection on the subject.
So we need to begin publishing and begin writing something because writing is a powerful way to ensure that this critical reflections and crucial questions continue to be raised as we continue to have this conversation. Then we talked about providing an online archive of the conference presentations so as to encourage translations of the various speeches into African languages. So today we’re here to pick up from this conversation. And more specifically, we want to talk about the possibility of the Journal on African languages and the law, law and language journal, either as a separate journal or a journal publication that would be a special issue of the East Africa Law Journal. So today we'll have several paper presentations speaking to several issues that were in the last time and also other people who have interesting papers and questions on the law and language question.
So we're looking forward to this very much, welcome everybody. And I'd like to now hand over to the dean to just tell us where we are at in so far as the English or Kiswahili for lawyers’ debate is concerned and the policy position with regard to what lawyers are expected to do in so far as lawyer language is concerned.
Dean: In terms of taking you through the journey that you've traveled at the University of Nairobi, in terms of getting Kiswahili recognized as a subject in the entry requirement into the study of bachelor of laws degree. As you may recall for those who were with us just a few years ago, maybe just four years ago, it was actually unimaginable to think that his School of Law Board would actually approve the inclusion of Kiswahili as a subject to determine the entry requirement into the study of law. Just four years ago. It was actually unimaginable to think about that. And I remember some of the arguments that were made in the part, it's a question that we've been struggling with for the last almost 10 years. And some of the arguments that we get in the school board for instance are that the law is very complex, that the language that is used in the case law, the language that is used to the statutes is really complex. And someone who doesn't have a very good grasp of English would actually struggle to understand the law itself.
And even when other schools in the country went down the route of introducing Kiswahili in their entry requirements, the argument was always that those people can go to other lesser law schools. The people who don't have a B in English can actually go to other lesser law schools. At the University of Nairobi, we cannot accept to lower our standards and we cannot accept to join the race to the bottom. In this case, the bottom was Kiswahili. But we’re happy to report that today, the year 2019, as Dr. Kabira has said, the school board, as well as the Senate of the University of Nairobi has actually accepted to include Kiswahili in the entry requirements of the law degree. So I'm just going to talk about what has triggered this change of thinking in terms of the acceptance of Kiswahili in the entry requirement. They’re several factors that we can attribute to that. And one of them is probably the intellectual debates like the ones that we're having today.
The second one is our legislative interventions and the third one is implementation of regulations as well as the constitution. Maybe starting with the first one, the intellectual debates. I can say that the last time we met was in 2018 at USIU when we were looking at the issue of law and language. And I can say that that conference that we had in 2018 was very effective in terms of changing the thinking of the school board members in terms of accepting diversity in the change of language.
Because I remember after the debate that we had at USIU, when we came to the school board, the people who attended that debate, they are very, very effective in terms of influencing other members of the school board to actually buy this idea that it is possible to improve your skills and competencies in a language, even if you don't have a B in that unit. Even if you don't have a B in English, it is possible for you to enhance your competencies as you study law. So that was very effective in terms of changing the thinking of the school board. And that is what actually led to the introduction of the law and language course unit in the curriculum that we adopted in 2019. The other factor which has been very useful is the research that has been done in his area. And we have found that most of the arguments that we have used at the school board as well as the Senate of the University of Nairobi has been supported by the research that is done in this area to show that if one has competencies in one language, in a local language, that competence can actually enhance the capacity to learn another language. And I can tell you that this has not been easy.
Even as we speak, I know there's still very many members of the school board who don't buy this idea, but we are happy to note that majority actually bought this idea and the curriculum was approved with that provision of Kiswahili in the entry requirements. Even at a Senate level, I can share with you that at the Senate level, we deal with more than 300 members of the Senate from different disciplines. And when we're presenting this case to them, of they need to include Kiswahili, we do get a lot of opposition from members from different faculties. And some of the tools that we'd been used … Or we are used to be able to convince them that is important to embrace Kiswahili, have come from, for instance, the international conventions. You have the Universal Declaration of Human Rights that protects the right to education and that also protects and provides that we should endeavor to promote the abilities of every child. This is captured very well under the concept of the child friendly schools. Which says that for a school to be child friendly, you need to have a system that allows the children to acquire competence in their own languages first, especially the first three years.
Because once you accept that a child's competence in a language can actually enhance the study of other languages later in life, then you're going to be able to allow the indigenous languages to be taught to the children, especially in their first three years of their lives. Some other tools that we have used as well have included the ICCPR, the Constitution of Kenya, which has actually borrowed some of these international convention practices as well as the Basic Education Act, which implemented the rights to education for the child. So, the essence of this is the fact that we should adopt a system that promotes the ability of the child to learn a language but not to hinder it. And so therefore promoting the knowledge of local languages is actually linked to the enhancing of the capacity to master other languages in future. So that has been very helpful. And during our journey through the school board as well as the Senate, we have found very good support from people who are experts in linguistics, like the Department of Kiswahili at main campus, Department of Translation.
Those are some of the people who have been very, very supportive of our agenda at the Senate, in terms of convincing other Senate members that it is important to embrace Kiswahili. We have also seen a second factor which has actually triggered this change, the legislative interventions. For instance, in 2016, the Council for Legal Education came up with the regulations which clearly stipulated that Kiswahili was actually recognized as a subject for entry into a law program. And apart from the CLE regulations, we have also seen, for instance, the Court of Appeal Management Act promoting the use of Kiswahili in the courts. All these have been very useful in terms of changing the thinking of people regarding Kiswahili. With the CLE regulations, you note the CLE regulations were enacted in 2016. But despite CLE regulations being in place in 2016, we have just enacted our curriculum to be in line with them in 2019. So for that period of three to four years, there was still that resistance.
Because the resistance was coming from the fact that we argued that what the CLE has provided is a bare minimum of requirements, which you don't have to comply with and we can still have higher standards rather than those ones set by the CLE. Finally, there's also the factor of implementation and regulation of the constitution. After the CLE passed their 2016 regulations, we saw that the Kenya Universities and Colleges Placement Service, they were very quick to also change their policy. Because what they did, the Kenyan Universities Colleges Placement Service … This is the body that admits students to the government program. They were very quick to change their policies to recognize Kiswahili. That happened around the 2018, 2017. And once they did that, because this is a centralized admission system that is independent of universities. So immediately they changed their policies, we started seeing students with Kiswahili … With a B in Kiswahili and without a B in English actually getting admitted into the law programs.
So that was also very effective because, in terms of influencing the thinking of the school board as well as Senate, there was the argument that was made that so long as Kenya universities, colleges placement service is actually admitting students with Kiswahili, we don't have a basis of not doing the same because if we refuse to admit those ones with Kiswahili, it means that we are going to have students in class admitted by KUCPS with Kiswahili, and yet for the module two program, we are refusing to admit the same students. Essentially, that was good to amount to discrimination. And that was also very helpful in terms of changing the thinking of our staff and the Senate as well to embrace Kiswahili. As we look forward to implementing the new curriculum, as mentioned, we have also introduced the law and language course and it's our hope that this course is going to be very critical in terms of enhancing any deficiencies that our students might have in English language.
And as Dr. Nkatha has mentioned as well, we’re also hopeful that as we continue engage in this course, we’re also going to come up with a journal that is going to help us to do more research in this area so that we can ensure that the students who are going through our program are not disadvantaged. If they’re coming with certain weaknesses in English, it’s our opportunity to actually cure that and enhance their capacity to master the English language. As we know very well as lawyers, even as academic staff members, there are subjects that we didn't do very well when we were studying at the university. And after graduating from university, I know of so many academics who are now experts in the areas that they actually got a D during their studies at the university. And they have gained that expertise because of the interest that they have in the subjects and the continuous learning that they have continued to engage in to improve their competencies in those units.
So if that is happening with the lawyers, we also believe that the same thing can also happen with our students and therefore they should not feel disadvantaged because they did not a B in English. It is still possible to improve in that area and become proficient in the language so that they can be well equipped in both Kiswahili and English. Thank you so much for listening.
Mbote: Before we move to the next part, I just want to open up the floor to any reactions to the agenda we've just set. Anyone with a comment on English or Kiswahili for lawyers or anyone who wants to say something that we might have left out from our conversations last year?
Male: Issue of the language and the admissions as a requirement in Swahili. I think there are two thing there we have to look at. First, those who have already bypass Swahili and those who are now coming. So the new intake for those who are the fresher, those new students who are coming in, and someone, like us for example who have not studied Swahili. So my suggestion is while we introduce Swahili as a requirement for the admissions, I think what is needed for those of us who have already not studied Swahili and are interested to study law, is that … It should be introduced as a course so that … So when you’re here, is a requirement that you should undergo a study, take a model in Swahili. So that what I am trying to suggest, thank you.
Nkatha: I think maybe on what he's saying about teaching Swahili, we had invited Professor Habwe from the Department of Kiswahili. Because, sometimes as a law school we may think that we don't have what it takes, but the university does have those resources. That is linked to the second point that I'm making just in response to the fact that we now have a course on law and language in the curriculum. From the history of introducing new courses and especially contested courses, they require activism to ensure that the course is offered and to ensure that the first time it is offered, it is very high level. And I'm giving an example of arguing for the introduction of the course on women in the legal process, in a very patriarchal faculty right here. And then when it was introduced, the fact that we were only two women arguing for it, I had never learnt feminism.
And investing in training people to go and be equipped to teach. And then when you mount it, it becomes a very popular course. So the point I'm making dean, is that when we allocate courses in August, we must make sure that law and language is allocated to teachers who can actually teach it. And because we have here Professor Mugane, we need to ensure that that partnership plays for something because we could, in the interest of … Or in the propagation of brain circulation, use the resources that he has to actually mount the course and mount it at a very high level.
Because I do know that you can have a course on the curriculum that just remains there. So it is very important that we ensure that it's offered. And finally on a light note, is just how colonized in the mind and language we were. I remember having to argue … Even if you had another degree, if you had the original sin, you know they called it the original sin, not getting the B in form four, they would not admit you. And I remember having to argue. I then chaired the Kenya School of Law Board and telling them, “Surely, for this person to have engaged legal material for four years and passed, that handicap must have been dealt with.” But people just followed it like … It was with B if no B, I remember defending students from this faculty who had come with another degree, but how would they have known they had a D elsewhere?
And they were actually people who’d taken sciences. So, when there was the binary that you either go to sciences or arts, you could actually have your A's and without English you go and do you very good course. And then you're seeking admission here, our requirement is only another degree. So they were saying you must lift the veil and I was arguing for against lifting the veil. Because if a person has studied for four years and has passed, then it means they can actually work with English, with fluency and facility.
John Mugane: Very, very concerned about the part of defending the idea that you can actually be intellectual with Swahili because we've been raised in these kinds of places. The original sin in fact, before it got to law school, used to be, for those of us who went to high school, form six used to be a thing called GP. You fail the general paper, you're going nowhere. In our time in form six, if you went to and you failed to write about a weekend or a trip you did to Mombasa or some other thing, you didn't make it. Now, for me, I was reading bad literature like James Hadley Chase, and following all those things. And if you read my essays to this day, I cloud at how I was just fishing all over the place to write these wonderful places. So, the whole idea, these original sin of GP, general paper, explaining in an essay turned out to actually follow us everywhere.
Everywhere you go there is then, if you find this problem, you can find it also in the qualifying exams to go to foreign universities. You have to do things like … What do you call it? [crosstalk 00:34:31]I forget the first one.
Nkatha: TOEFL?
John Mugane: Yeah. TOEFL was interesting and all the other stuff. And all these things. And how did you fair in TOEFL? I remember the one I did, that time the embassy was the old one, you just went there and whatever. One of them was they would ask you questions that actually are relevant here that thank you for helping me this weekend. I really liked it and somebody says, “So, can we go to dinner like we planned?” Says, “You bet.” And the question is, “What did this person mean? Are they going to bet on money? Are they going to do all these things?” And you very [inaudible 00:35:10] saying, “Yeah, I agree with you and I will be there and so on.” These were the things that are being examined in TOEFL. Now, if you knew English for all your life, you could not guess that if you didn't actually know the exact acronyms and so on. And another thing also, when you went to the embassy to look for a visa, the embassy was always asking things that are tricky.
First time I came here to bury my own father, I went to the embassy, I didn't have anything. And then this person starts to ask me about basketball games in my school, how is the school doing in basketball? Then I just joked and I responded, and suddenly, he just stamped the thing. Because I knew the coach, I knew how we were doing and all these other things. So communication and English has always been there. So I'm very happy with the idea of all these things. But the other thing that is actually huge in terms of accepting Swahili this way is that, remember I've told you, there are many universities right now, even in my own university, they were talking the other day about how students have stopped learning languages. And then our [inaudible 00:36:08] and said, “No, but we are having an increase.” So the question then is they started looking at do we have low attendance, do we have all these things.
Now that's another story, but I make them write weekly reports and we film them. And you have to actually subsidy all these things that me and Dr. Nkatha were doing. And by the way, thank you for bringing the computer. See I keep forgetting Nkatha became Dr. Nkatha. She was my [inaudible 00:36:31] long time. She used to just bring things around. But these are the things we're talking about. So for me, I'm very happy with all this, but also, the part that Professor Mbote was talking about in terms of connecting with us. That's Isaac sitting over there and Isaac was one of our stellar students at Harvard. We were in school, like I said, yesterday as freshmen together in different sides of the classroom. But Isaac, we have tried an experiment here. I tried to tell Isaac when I left last year that we should find Nairobi University students who are just doing a simple thing like learning Swahili, who would then talk with my students on a particular day on video screens and so on.
I let some of them, some of them did not do a very good job and so on. But what happened, that exercise we come to over later, it worked very well, some of the people trying to talk but then we didn't get students here because I didn't arrange it properly. But the whole idea is that when … I've seen African countries, and I've been to West African ones and other places, people immediately start learning African languages and they realize what is Harvard doing landing languages? And now that's the same thing. Why are we not doing a better job in language policy like Professor Bukenya was telling us yesterday? It's because it's not been embraced by the brains of the country. It is always this ancillary thing that is actually out there. So, with the co-teaching type of thing, it's … There is first the language you one whereby on Fridays, at some time, there'll be a time when our students talk to each other and they talk. That's when they are learning, just practicing.
And that is something to arrange. I don't know how we'll do it, but Dr. Nkatha used to solve all problems and by the time he gets you … But I'm saying this because we have you dean Kiarie with these kinds of things. It works well because our students are secure. I don't want Isaac to go and to bring me people from the … That we know outside. We want students who are here knowing students there. Just the night I saw our students floating around here with some of our students.
They should be, as they're visiting Kenya doing the other things, they should come here and find a student they know each other with. What that does is that these big schools, their big thing is networks, networks with each other. So to say just that is a language which does not require any student to actually be doing other than their speaking. Then there is the one, like the course you are teaching Dr. Nkatha, that finally became yours.
I was doing it and then you came and owned it, was basically … Like the AAAS where we talk about intro to African languages and cultures. This is one whereby I'm not thinking about teaching it in the fall without you giving a lecture from here. And when you give a lecture from here and we see, if you have a class and my class sees that, then we start a communication. These are signals that we give each other in terms of saying what we're doing is very important.
Now this, I was just talking about Swahili, but not just Swahili. Some of the biggest languages we’re teaching are Yoruba, Ebos, Zulu, we can't sustain those people. But it's not coming from an argument that you can actually go and talk to South Africans or go to talk to … No, no, no. That's a tourist. We can’t be tourists here. They can find somebody else who speaks it. It is that the nuances that we're dealing with here are very critical. So I think we will promote each other by actually having these engagements going back and forth like that. And then figure out how to really work it in terms of institutional collaboration. Mine does not mind if I just connect with another class and we talk, but not every day. If we do it every day and it's part of the curriculum I've written new there, then we do have to have an understanding. But it will get to be a very exciting thing when we do that. These university coughs, people get to the cough in this region.
When Harvard coughs over there or so hopefully somebody else will get the cold because then they will actually be influential. For language learning that Malwale is talking about, that is something we are able to do. So we can always plan that.
Speaker 5: Let me just give my opinion, building from what we had last time. Thanking professor … The two, the three professors on the lead on this and thanking them for remembering to invite and to inform me. So, last time I presented about legal pluralism. The whole idea why legal pluralism, I feel has not peaked in Kenya, though the constitution anticipate it, is again, the issue of language, in my view. And when I'm talking of language, then I'm looking at meaning beyond just words. But, yes, we are in a dispensation where we talk of legal pluralism for all the years. And as given by our constitution very strongly, which name sources of our law, but you still feel when we talk, even of rule of law, we still love the centralist approach. Law come from one source, law come from the legislature. And yet we live in dispensation which appreciate pluralism. Secondly, if you look at the issue of language, I spoke to somebody who litigated a very important case on our [Stingny 00:42:04] Case. It was a case of indigenous people. And what he told me, what Professor Naya did is that he had to come with his meaning to this court.
This is what these people mean when they're saying this is their resources, and it was in their language. And they deliberately did that, including these people will be praying in their traditional language and they will be telling the court of Human Rights in North America that that is an equal of the Lord's Prayer but in the indigenous language. And to him as a strategy, he was not going to seed on the issue of language. That these people were going to talk of their resources in their own understanding as indigenous people in their own language.
And you know that our Stingny is one of the most popular case where the indigenous people won against the state. But they had to fight within their comfort and the meaning was given their context. When you look at our constitution I think, it has entrusted so much on the issue of Africa values, Africa culture and whatever. But as Mute will say, you cannot trust a blind guide doc. I believe that lawyers with this beautiful constitution … I have not unpacked it. And, so the Kenyans spoke, put their hope, aspiration, the judiciary strategic plan is talking of indigenous and endogenous jurisprudence. But lawyers have not unpacked it for Kenyans and it has remained locked in there somewhere. And so that is the content of my discussion because, as Professor Mugane have said, part of being bilingual is that even the way you think is different. And research have confirmed that. Whether it is switching between languages and whether it is talking.
But, so there’s so much in our constitution, 2010 constitution, that was the climax of the people driven process and Kenyans putting their aspirations, but I still feel that it has not been unpacked. And to borrow Mute’s word that we are trusting a blind dog to lead. Why am I saying that? If you look at the constitution, a acknowledging that we … It start from sovereignty belongs to the people. And it moved from the west-layan principle of sovereignty which we knew that sovereignty is about the government and whatever. And it's talking of sovereignty belongs to the people. And I looked at that language, the same discussion South Africa are having and questioning who removed the Ubuntu in their constitution. It was there throughout all the drafts until the experts came from Canada and whatever, who didn't understand what is this Ubuntu. And so they dropped it. And the South Africa Constitutional Court have been able to still read and see Ubuntu in their constitution, apart from the word Ubuntu being removed by the experts.
For example, there is a famous case on a death penalty where they said, “No, this is against Ubuntu.” And they read … Kenya judiciary have been criticized that the dictionary meaning in interpretation. And people have felt frustrated that how do you use dictionary for such a serious interpretation. South Africa court use principles for example, Ubuntu. And they said, “You know what? The Ubuntu principle cannot support death penalty.” So court have embedded back the Ubuntu principle. You know our constitution is very close to South Africa. And the closest that I want to discuss here are actually mirror reflecting what is going on in South Africa. So I'm looking at the Africa communitarianism because language is not just about words, its meaning. I'm looking at Africa communitarianism, whether it is utu or Ubuntu in our constitution as maybe extra textual aid to interpretation. So I started by saying that our constitution start by saying the sovereignty belongs to the people. And then if you look at what Ubuntu is, that is really Ubuntu.
Yes, you can talk of the US Constitution talking of we the people, Israel, the French revolution talking of we the people. But we also have that concept here. The very famous Ojijo Oteko road you see around, Ojijo Oteko, who is actually Professor Migai's uncle, was a man from Karachwonyo. And he had found when the Europeans had taken a lot of cows from people. And he stopped and said, “We cannot support this.” And when he was asked who have said, he said, “The people have said.” [foreign 00:47:31]. And that became the famous thing.
And of course he died, his body was not found, but you can see Ojijo Oteko road. So the concept of we, the people … Of course the famous one will be the US constitution and whatever, but we have people who are fighting for Mau Mau and as they were dying were grasping on the soil and the earth. It was about we the people. That is very clear in our constitution. And to me that is the most important part of the constitution. Because we are sovereign without guns, but we are sovereign and everything have to revolve around us as sovereign.
So when you look at that concept of the Africa culture, you are looking at sources of Kenya Law. You are seeing there put that customary law and all that are sources of our law. You are looking at ADR and you are looking at article 159 which demands including traditional dispute resolution mechanism as a mechanism both by court and outside court. That is really the concept of the people. When you look at the issue of the right to … The freedom of speech and all that, you see that the constitution have restrained it. That it doesn't … It cannot be protected in terms of propagating hatred for other communities. And that is a concept of Ubuntu which is talking about people living together. And even if you look at that act or even if you look at the Kaparo commission, it doesn't require your intent that you intended for your comment to be whatever. It is more of it will be taken this way. It will be read when you said this that you are hating on this tribe. And it's not about individual and it doesn't matter so much you are intent and this is not leading to cohesion. That is a very strong principle there of Africa communitarianism in our constitution.
When you look at for example, the equalization fund in the constitution, it's not so much talking about blaming, but it's talking about fairness for everybody. And so there’s equalization fund. That is a concept borrowed from the Africa communitarianism. If you look at for example, the principles of the constitution, equity and social justice, that is an Africa concept of communitarianism. And it is there. Every time I hear much of the communication about constitution interpretation, people are stuck in that clause open and democratic society. And to them in their mind that mean liberalism. Liberal, open and democratic … The word is not even liberal, open and democratic society. And to them that … But they forget all these other aspects that that same constitutional is talking of dignity. That is a concept that is homed very well in Africa Ubuntu. Human dignity. That is a principle in our constitution. How about equality? And so they so much in our constitution, when you look at even the rights and limitation of rights, the constitution is saying that it has to be limited by law.
There’s a real debate whether … Because we know sources of law. One of the sources of law and the usual debate is, well, morality cannot be a limitation of the right, it has to be by law. But we know that in according to our constitution, customary law is law. And so there’s debate whether a customary law can limit or can be a source of limitation. And you know that a few weeks ago there was a ruling that look at the principle and the African culture and came a certain way and people were shocked because people have only ran with that word open and democratic.
And in their mind, I think, it simply means we are French, we are European. So when you look at our constitution and what Kenyans were trying to do, and what lawyers have refused to unlock or unpack for Kenyans, because the law training and the law orientation of course you know that it is aided and it has always not been working for the poor or for the masses. There is a lot that can be understood here. And that's why, in my conclusion, when a judge can pick dictionary meaning and look, why not look at the African values that the one in the constitution saying proud of our culture surely is not just there for aesthetic purposes. Proud of our diversity, proud of our culture. It's not just an aesthetic value. It has a real meaning. And the Kenyans intended it to wield some power when we are talking about our constitution. So, I conclude by saying this is a very good discussion. I think as we talk of language, language communicates meaning and let us go beyond just talking of the language as spoken and as the panel have clearly shown, when you think or you talk a certain language, you see some things.
And that is why we can see the Ubuntu and communitarianism in our constitution. And that is why we are stuck with the word open and democratic society and with think it means a certain thing. So that, until we can redefine rule of law in our vernacular, then we don't know it. We know what Daisy said about it and all those five principle. But if we cannot describe it in Kikuyu or in Kijaluo, then we really don't know what rule of law is. We are simply applying what was there. But in our context of pluralistic society and pluralistic law, it has to mean something. Thank you.
John Mugane: I think these things that you have not unpacked, I think it's for you to take one of the … I was advised by the legal minds that were getting their higher degrees at Harvard, find us one case where you can unpack something for us and demonstrate this. Because the lesson you're given is actually pretty straight forward. And this is a very, very, very good introduction that … And the way you've spoken it, it is rending itself to when I teach, I can actually just tell people now listen to this. But what can you take that is the sample, the case study you take that then transforms this and so on. And I think you're sitting in the right place to actually do this. So thank you very much.
Mbote: You know this whole issue of a communitarian ethic versus unbridled individualism is something that we really need to look at when we talk about language. And you see, especially for us who go out and get advanced degrees from other spaces, it's very easy to have to speak a language that is understandable there, which really has no application where you are working from. And I remember when I was doing my doctorate, I had immense problems with my supervisors. Telling them that they were community rights. They actually almost … I almost didn't get a project because they were telling me I had to attend [pozna’s 00:55:51] law and economics for 10 weeks. Which was brainwashing. To tell me that property rights can only be individual. And I said, “No, they were, but my experience is that they are community rights.” And I got my degree eventually. I think they were convinced. But 12 years after getting the degree, my supervisor referred me to the Nature Conservancy who were working in Samburu and were trying to understand community land rights. And because we were sitting on the board, he said he remembered a student from Kenya who worked on this issue.
And they called me and I actually went out and did the work on community land rights. And he came and I went with him to the manyattas in Samburu. I went to with him to the group ranches. And I was telling him, “When you were telling me about pozna’s individual rights, this was the reality that I was talking about.” And actually he apologized because it took me six months to convince them that I had a project. And in essence I think that challenge, we talk about the blind, when we were coming up with the national land policy, suggesting that the … Proposing community land rights, they will just say, “You know, since you're talking about these community land rights, can you tell us what they are.” And no lawyer, no mainstream lawyer understands community land rights. It is the other. And the idea is that these will grow up to be private individual rights, but now we can admit them as toddlers.
Nkatha: I want to understand the argument you're making. Is the argument that you're using the constitution of … Your making an Ubuntu interpretation of the Constitution of Kenya 2010 using specific examples. So are you using specific examples to do an Ubuntu interpretation of the Constitution of Kenya 2010 in order to show that we are wrong for assuming that some of the words that are in the constitution such as equalization fund, equality and so on are liberal principles?
So you're showing us that actually we are assuming that this is what the words we’re … Yeah. We are imagining that it's a western understanding of the word, but what it actually is, is an African communitarian Ubuntu understanding. So sovereignty, it's not that Westphalian sovereignty we are talking about, you're talking about an African sovereignty principle. And if that's the case, how will you prove it? How will you prove it? That will really help me because I also want to prove that. That would be very good.
Speaker 6: I just want to connect his connection with the African customary law and then with the language used in the constitution. My few days that I spent here in the University of Nairobi and then when we were studying the … Looking at the Constitution and then the words which are used in the constitution. And then the relation with these words and the African customary [inaudible 00:59:42], I felt that it is actually the constitution which is killing the customary law because they are using word for example, repugnant, inconsistence, which really shows that the African customary law is bad and it should therefore … It's a bad thing, it should there always be connected to the good thing which is the constitution.
Now my problem is, if we're looking deeply, even now the constitution of Kenya is trying to say, let us remove the death penalty. Death penalty in African … I don't think it exists. In South Sudan, I've never heard, in any African … In any south Sudanese tribe that has a death penalty, it's not there. There are homicide, people kill and then at the end people sit down and pay what we call blood money. So there is no sentence that will come and say, “This person must be hung.” This is a British thing. It's a colonial thing. And now in our constitution we are using this rather than … Actually, what I felt is that it should, the common law system should be consistent with African customary law. Thank you.
Speaker 5: I think if we forget what Kenyans were trying to do with the new constitution, this is the constitution that found people like Ogendo, people like Patricia, and if you look at the other constitution, Kenyans were clear that we want constitution for us. We will adopt without being adopted. We can adopt something from Europe but we don't want to be adopted. This is our constitution. A people driven, really everybody in this room was old enough to see how that process was Kenyan.
And that meant that if you look at the record of engagement, even experts and presentation and what they were getting from communities, are these concepts. Are these concepts. But then, that's why I was saying trusting a blind guide dog, it fell in the hand of a lawyer trained a certain way, thinking a certain way, and will read a certain way. And that is the big gap of lack of scholarship in this area we’re talking about. Whether it's the other language, the lack thinking in this other sense, the lack of critical thinking, but not even critical thinking in this way.
This is the mainstream, but because people are wired a certain way. And that is why then, these need to ... Whether it’s a suggestion for that journal, you can actually see the court starving. Because in the strategy of the judiciaries that we want indigenous things. But there's nothing indigenous. Most of the research we do are comparative, comparing rule of law here and there and there's nothing more substance that they can hang on. So there's this gap, there’s lack of knowledge production. If Africa is only producing 2% of knowledge, then you know the knowledge we are producing is again geared towards a certain type of knowledge. And so nobody's talking about this, but it's not reading into it. Dr. Nkatha. It is there. It is what Kenyans wanted. They put it there, but they have not found an advocate or people who understand it to demand on it and say, “Look, when people were talking sovereignty belongs to the people, this, in African context, this is what it means.”
When people are talking of equalization fund and when people are seeing freedom of speech but don't make tribes hate each other, this is the Ubuntu principle. When people are talking about human dignity, it is dignity within this context. When people are talking about proud of our cultures, when people are talking about all these concepts, I think this is what they were trying to do. But they trusted … Somebody wrote count on Kenyans to bastardize even good ideas. The tools we had are not sufficient. We have not … We have pursued a certain line because we came with the constitution, but the training and everything has been oriented towards a certain direction. And so these need to push back and to teach and to acknowledge and to publish that this, when the constitution is saying we the people, in our context, what does it mean? These are contested meaning and that's how knowledge contend.
And to me, when we talk of bringing other languages, we are talking of the danger of a single narrative. And we are talking about bringing meaning, we the people meaning on the table. How do we do that? So language is a carrier of people aspirations really. That's why it has that Gravitas. And that carrier include their culture and value and their thinking, which is also protected in the constitution. Including where the constitution really tried to do with the English. But things don't just jump from the constitution and become reality until people advocate, until schools write about it. And until almost people scream that, “Hey, wait a minute, it is here.” If you look at South Africa, they are doing that with their constitution. And I told you the word Ubuntu was left, but they are saying, “No, this is what … Where we were headed. Look at what the people were saying.” So it is a concept that I'm developing. It is part of the paper that I'm writing, but I see a lot of things in the constitution, but people are running with a liberal and open democracy and assuming a lot of things. So thank you.
Mbote: The title of my thoughts is that plural legal systems demand use of plural language forms. And I take a cue from a paper that has been shared, which was written by Jill Cottrell Guy on pluralism language and constitution. And she notes that there’s no dominant group in Kenya, the largest being 20%, and I think arguing … she's basically just describing how Kenya has approached the issue of language. Then, there's also the discussion we had yesterday with Professor Bukenya on the challenges of East African multilingualism and the need for realistic language policies. And in essence, in both discussions, I think there is almost an unstated theme that we need to choose which languages to use. I think for Jill, it's clear that English, Kiswahili and then for Bukenya yesterday, he was talking about three. Having the first language, the second language, and what was calling the family language. And in this discourse, I see a number of paradoxes.
One is the fact that a constitution, our constitution, whilst emphasizing national citizenship actually allows for Republican citizenship. And it allows for Republican citizenship in a number of ways. One is in following rules that are peculiar to your community. The other is devolution because once you devolve there’s a sense in which you're looking at entities that have a boundaries that are demarcated from the national. The second one is a point that Duncan talked about a lot. This democracy and participation by the people. I think we really need to unpack that democracy and participation by the people because a lot of times we talk about those as values that are abstracted from our grounded living realities. What does democracy mean within a republican citizenship? And you see republican citizenship then demands that we go into our other forms, the other spaces that we occupy. Is there one way in Kenya in which we can say everybody participated?
And then there is the issue of transparency and accountability. I think that also can be problematized, the rule of law can be problematized. And then the issue of sustainable development. And sustainable development read more to mean what it means in UN agenda 2030, the sustainable development goals. Because many times when we talk about sustainable development, we limit it to environmental … To ecologically sustainable development. But sustainable development is development that can actually live and stand the test of time. So, once we recognize cultural expressions, for instance, in the constitution we look at … We recognize indigenous technologies in national development. We recognize ethnic, cultural, religious diversity. My argument is that all these make the case for the fact that you can't have plural laws as allowed for in our article two of the constitution and then have one nay two languages. Because those are just the minimal language forms. And in essence, basically again, problematizing what is this legal pluralism?
We have more than one legal order in a social field. As I sit here, I am a governed by Kenyan law. So the constitution, if you like, is the [grunom 01:10:56]. But I am also governed by the law of my micro community. So how I behave as a human being and as a woman is governed by a lot of norms that are really not in the constitution. And actually many times the constitution may be the most … It may be the least of the things I consider in the actions I take. Beyond even your cultural norms is maybe in your family, there are things that people do. For instance, in certain families, it could be that even though this chair is there, we know it is Baba’s chair. And you know, it's not in the constitution but people won't sit on it. And that is what Sally Falk Moore calls the semi-autonomous social fields, which generate norms and enforce them. And you know, the way they're enforced isn’t the way law is enforced but they are enforced nonetheless. And they may be even more forceful than the constitution on you.
Because the constitution may be too far removed from where you operate. So in essence, the question I ask is in light of legal pluralism, what should be the language of law? If we have one or two languages that we say they are the languages of law, we actually … We remove our whole reality from the space of law. And here, when law … Lets define what law is, and I think a law many times is whatever is recognized as law in social practice. So you can’t say that law is just the constitution. There is official and unofficial law. And if official … When you talk about English and Kiswahili, we talk about the national and official language. What about those other semi-autonomous social spaces and customary spaces, which are neither Swahili nor English. And so basically, what … The norms that are recognized in official and unofficial law will modify, transform and affect patterns of behavior. And I give the example, for instance, when you want to get married and you're a lawyer.
You see as a lawyer, you are the embodiment of empowerment. So, if today somebody met somebody here and they want to get married to them and they have capacity and I am a recognized a marriage registrar, we should just declare them man and wife. If maybe we were meeting three days, so you are required to give notice for a number of days. We just do the procedural issues. Then you can write to the people, you are mother, your friends and tell them, “By the way, I got married.” So what is it that makes you as a lawyer have those we are taking the man home … And actually, if even that villager says “Mm-mm (negative)” That man's clan and ours clash. With all your law that could actually be stalled. So if we are saying law is English and Swahili, what are we doing to those other existences which are actually outside these purview here? So in essence, I'm saying law is about justice and justice can be thwarted because of the language used.
And basically, when you're talking about customary law, I think from colonialism, there has been a systematic subjugation of custom. Even though it is recognized, I like to say that colonialists recognized customary law out of they could do nothing. It is a deference that they pay to it because that's a reality that they don't know how to deal with and they want to live there. And actually, our constitution and our laws do much the same thing. So the area is this and the other. That reality out there, which is … it's actually seen as rogue because you see it doesn't fit on all fours within the square pegs of the constitution. And people like Eugene Khortlan spent a lot of time saying we are restating customary law. What was that about? What was every restatement of customary law about where you are asking people to tell us about your customs and you also have colonial courts reading and applying customary law. So you have them talking about bride price. What is bright price? When you think about the relationships between families before a person gets married, is it price? What is it? And how has these restatement influenced the way people operate even at that local level.
When people now begin to say, “You give us … Our daughter has gone to Harvard, so you pay x amount.” And you know, the very many women find themselves in this courtroom where they are being haggled over and they have no agency. It doesn't matter that you're JSD, Harvard, Stanford, you'll be haggled over. And the persons haggling about you have no clue how you went to school. But you see, there’s a sense in which the formal and informal are feeding into each other, but the formal is trumping the informal. Because you see, the rules of operation here earned that Harvard education or whatever it is, it is a social relationship and how do you deal with that social relationship when the actors have actually gone to those other spaces? Another one that I found interesting doing research on women's rights to inherit was two terms: Inheritance in succession. Inheritance has a connotation of taking for yourself and appropriating. And actually, for many of our communities, you ask yourself in your language, what is it … What do you say when you're saying a person is inheriting.
Inheriting means I take from you, it becomes mine. But succession is I step into the shoes of the person whose property I take. And succession is a lot more facilitative of egalitarian relationships between those who are to benefit from a diseased estate than inheritance. Because inheritance is the one that pushes you then to want to have it for yourself. And you know, it was the same with a wife inheritance. We did a work in Kisumu, and I remember this man telling me that when you talk about wife inheritance … It wasn't wife inheritance, it was a levirate union. This woman has been bereaved, she's widowed. She cannot sustain her family. So she needs to be supported because of the way in which the society is organized. She needs to be supported and enabled to bring up her family. But then it eventually … It very quickly became an issue of sexual relations between the person inheriting and the woman and much less about taking care. Then there’s the whole … In that whole discourse is the fact that we subject, we talk about subjecting customary law, I think it’s a point that was noted, to the test of repugnancy to justice and morality.
And my question always is, is it only customary law that can be repugnant to justice and morality? Whose justice? Whose morality? And for me, unabridged individualism that fuels greed is actually against justice. There’s really repugnant to justice and morality. Where a person, just because they were born male in a family takes the whole estate and throws away everybody else because they’re born women. Isn’t that repugnant to justice and morality? It smells … where … Okay. I think Duncan spoke about the communitarian ethic. This thing about individual ownership of land. Where did we get that? Where you … And you know the blackstonian, you enclose it and you let nobody in. Yet, we know in African custom, in the words of the Ghanian chief Nana Ofori, land belongs to many who died, many who are living and countless unborn. So, what gives these feverish concentration that it is mine. You see, it is yours only to use and then bequeath to the next generation. And the other way in which we see you can actually have repugnance to justice and morality, when we talk about rights, in customary context, there is deviant behavior.
They were always deviants. Yeah? Deviants were not thrown out, but they never became the standard. So you allow for deviant behavior without letting the deviance become the standard. And, for instance, they will be people who relate in ways that are not normal. Look at, for instance, when we talk about even woman to woman marriage. You know that is not normal, but it is doing a particular thing within the community. And in fact, in doing research on woman to woman marriage, the question is, is the woman taking on the man's role? No. It is a way of ensuring that this woman is looked after, the old one, and the one who comes in also is looked after because she may have children out of wedlock and cannot look after them. So, in essence then, I am appreciative of the views that both Jill and Bukenya have. But we must be very careful not to privilege certain forms by talking about which languages will we make the language of law? I was actually going to talk a little about the death penalty, talking about customs and talking about my own community.
The Kikuyu didn't fraternize with the dead. You were going to die, they threw you out in the bush. And when you died they threw you out in the bush. Because the Kikuyu and the dead don't … That is why they bury quickly. So if a person killed another person in the community, the question was do you kill the one who has killed? And the kikuyu were very categorical [foreign 01:23:49]. Don't let the hyena eat twice. Because it already ate the one who died, why are you giving it another one to eat? Find a way of making good what has been done rather than feeding the Hyena. So basically, going back to … If you use two languages and you then put them in the constitution, translate the constitution, the constitution itself is problematic. Because what it is talking about leaves out lots of world realities and forms which cannot be encapsulated just in Swahili or English. So we shouldn't be talking about prioritizing languages. And why I'm talking about this is, when you go to the village … When I did my pupillage, I did my pupillage in Murang’a.
And it surprised me what the translator was saying because I could understand. And I could tell what he saying is not what this person is saying. But you see, the judge didn't speak the language. So he depended entirely on what the translator said. And the question then is, are we, perhaps, by talking too much about having languages of law, even this discussion we had this morning about English and Swahili, are we enhancing the colonial enterprise? We have a colonization of law now, not by just English, but also other language forms. We are devaluing languages because of our ethnic animosities, because we don't want to say we speak in Tholuo, what will the Kalenjins say? Yet, in those expressions is where we really find the … We will find more nuance and maybe even develop law. Because you see, law for me has reached its limits. So if it's going to grow, it can only be grown by those little things we’re saying, succession, inheritance. We’re saying no death penalty. In Zimbabwe, when a person killed from another family, the killer’s family had to give a girl to the … Of course the rightness or wrongness of giving the girl is debatable.
But, the idea was that you basically am making … You’re helping communities come together. And these persons who have killed now have to nurture these girl to become a woman who will bear children who would have been born by this person who has been killed. And I'm saying, I'm not giving value judgment about what … You should read Mary Maboreke’s work on child brides. And even in Tanzania, there are child brides. So when we … We have a mishmash. We take modernity but we’re still steeped in very traditional settings. And that allows the powerful to pick and choose the norms they want to govern them. And, at the end of the day you lead to injustice. So if we looked at customary law within its encasement, which language is an integral part of, we would be able to contribute to this discussion on legal pluralism.
Female 1: Good afternoon everyone. I am Mercy and a fourth year student in the University of Nairobi. My question to Professor Mbote will be, could you kindly clarify on the point which you stated that we should not prioritize language because we may … it may end up being a risk to either colonialism or de-colonialism of the language to which may not be the development that we seek to farther in these debates. I'm also open to correction in case I misinterpreted your words.
Male 1: I don't know whether my language … My question could be directed to professor Mugane because it concerns language. I'm a Turkana and Iteso, it is a community, we are like cousins because we could hear from one another. Some, we could hear. But we lose at times, we consider ourselves a subgroup of the Karamojong community in Uganda. But there’s a Teso word about to God, the name of God in our language is [foreign 01:28:43]. The name of God in Teso language is [foreign 01:28:52] A-K-U-J. A-K-U-J. That is the name of God in our language. Then the name of God in the Iteso language is [foreign 01:29:09] E-D-E-K-E. [foreign 01:29:13]. Then [foreign 01:29:16], surprisingly in our language is disease, in Turkana language. When somebody's sick, say he’s suffering from [foreign 01:29:25], suffering from a disease. So then I wondered, where did we lose … Are we the one who could wrong or them? Because in that language and information, whether if a Turkana says, “You are [foreign 01:29:42].”
We can use [foreign 01:29:43] actually even to abuse somebody. That you are [foreign 01:29:46] meaning you are a disease. But then if you say you are [foreign 01:29:50] to the Iteso will mean you are god. And so, then I said, “Does language at times, to some people, misinform?” That's where I find the paradox. And I said, “Then, if it can happen that way, could it be that what is quantified in the constitution as currently we are to obey, also can misinform?” And so if a judge is looking at what's written in a particular constitution, or in a particular act, and it could be for purposes of saying, addressing a particular context and is trying, even an advocate quoting a particular case that was decided somewhere in some part of the world in order to support his or her argument, it might mislead. Because if you don't understand what they may have wanted to communicate within that context, then it may not necessarily apply in other contexts as such.
So I find that paradox in language. Well, I'm not a linguist, but when I get interested in Bible translation, which is my area, then I find now complication like that. I say, “How will an Iteso will pick a Bible in Turkana language read about several diseases written in the Bible and we mention them as [foreign 01:31:13] which is really God?”
Male 2: I'm asking you are talking about to pluralize the language that you use so that we have several languages in application of the law. But I have a question in that if the social function of the law … We have several functions of the law, we have the normative and then law itself also have the social function.
And one of this social function is then to unite several societies which is under maybe regime under one jurisdiction. So let's say if we then we were to use a single language like let's say English or Kiswahili, then could that one also be supporting the social norm or the social function of law by then making law to a uniting factor for these several languages.
Female: But, I just had a comment, I'm listening to what both professors are saying. I'll just wait to ask if there's a potential for having a clinic related to the language in the law where students interested in specific subject matters could say do research probably after their semester is over or even during the semester. I'm sure it could be part of a class. And then conduct I guess some research based on the issues that are coming up today. So like what professor is talking about, the bride price, the inheritance, succession, if those issues can be taken care of by the different students who are here considering it's a diverse college, isn't it? People from all over the country? So different parts of Kenya, different cultures, different norms. So that's just one of the things that I have for now.
Mbote: I was being provocative. Let me first preamble my response. But, when we talk about … And I've adverted to that issue of colonizing language. It always strikes me when you are in a discussion with a person from your own space that you struggle for words in English when you could explain in your family language. I don't mind mother tongue, but anyway, family language. When actually, sometimes even a student who I'm supervising, I find them struggling. I tell them, “Can you tell me, because we speak the same language. Tell me what do you mean?” Because you see, by the time you have processed it in your mind, and this is a lot, especially when you're talking about social relations. Because you see, when you're dealing with abstracted things like tax which are not part of your social ethos, you can talk very good English. But when you begin talking about things that really, they matter to the heart, is very difficult to express yourself because your mind is telling you but. As you are saying, it's selling you but.
And you cannot bring that but into the conversation. So my simple point is that just having English and Swahili is colonization of the discourse because those are only two languages. There are some ethnic Swahilis, yes, but why do we privilege Swahili and English and then not allow these other languages. And I do realize that having all languages may not be feasible. But once we say a national value and principle of governance is devolution and we establish counties. And in some counties … Do you realize that in some county assemblies the language is the local language? Gusii, there are those who like … Like I'm told amongst the Lou, if you go asking for directions in Swahili they talk to you in English. Because them, they've owned English as their lingua. But you see, if you allow devolution then you must allow for use of languages beyond these two because there are places where people will be more comfortable, like when now you're explaining these matter in bunge, these local bunge, the county assembly and people can't understand you.
You just will talk in the language of the place. And that is happening a lot more than we hear. So we are here pretending that yes, English and Swahili, but at the … when we devolved, even when we say who is employed in the county government? Most of the county governments’ lingua franca is the language of the place. And that is something people have been trying to attack and to deal with. But governors keep saying, “If you're talking about bringing resources closer to the people, charity begins at home. And if charity begins at home, you talk in the language that people who are close to you can understand.” Then there was the issue of the different social functions. Uniting … I like the way we talk about unity in this country. We talk about unity up there, but in our little cocoons, what are our different forms of unities? And what is to prevent people from using particular languages, even to understand what law provides for and what law allows and what law actually is against what people believe in and what should be allowed for in a place.
I remember when before the constitution, one of the most difficult things I was tasked with was to talk about the constitution in my mother tongue and I was talking about land. And, the whole night I had to debrief myself of the English and I had to have the key words. The next time they asked me in Meru on the spot to speak about devolution in my mother tongue. And, first of all, you know you have to erase devolution and now begin to own it in your mother tongue and talk about it. And this is going to be aired. So it's not like you can say devolution, you must have a word that represents that concept. And I wondered why is it so difficult to talk about these in my mother tongue if it is supposed to be helping? What would be an easier way to talk about devolution, to talk about the land rights? For many communities, they don't even talk about land, people talk about the soil. But the soil is not regulated by law. We regulate land.
John Mugane: The whole issue of language planning usually is also characterized by the absence of linguists. Because linguists can see the game you're playing there is actually a game of actually producing a technology which is a standard language which has a function. And that's not language. Language is what professor Mbote has just talked about whereby it is about meaning and thought expression. The word that comes out of your mouth or the sentence that comes out of your mouth is really a selection of some storm that has gone on in your mind and therefore you're trying to bring it out. So these exit medium of expressing a thought doesn't mean that's the language. Your mind has a lot of … That's why when I try to understand what you're saying, you say, “No, that's not what I mean.” Then you clarify and clarify and clarify. So it's about thought process and so on. The reason why I disagree with a language policy that peaks, it is that when I really look at the empirical evidence, remember linguist is the scientist of language. He's the most scientific of the humanities we've been called, and the least scientific of the sciences.
I live in a very nice nervous place of each side. The most scientific because we look for scientific evidence of language. And then we also look at how it actually is lived in the real world and so on. So the first thing is why are we writing … The moment you sit down to write a policy, one of the things you've missed is how the world runs. And I'll tell you this, if the CJ retired yesterday, was right and I have no doubt that he was, that only 5% of the cases really show up in the courtroom. 95% is out there. Now, think again about language policy. You’re here planning language policy, but the action is really in the local languages. It's not happening where it’s happening like professor Mbote has said in everything, in all the deliberations that are happening. It's happening in our local languages. And so for me, I'm always very nervous. And in fact I tried to [inaudible 01:41:03] yesterday saying, “I pass by a people. I'm sitting with you and you speak your local language and they start saying I've been left out.” Yeah, if I'm talking to my mother, why do you want to know?
The only thing you should know is that if I'm your friend, how did John become such a low person that they will turn their language so that they talk about me? It's missing the whole point. If you look at the people are doing, why do we even … Our papers of social linguistics will actually show you, people will actually go shopping, if I find … These are the papers written all over the place. You find a Kikuyu selling something and you come from our tribe, we talk in Kikuyu. You talk in Kikuyu to them. You find a Luo, you talk to them in Luo and everybody keeps saying, “But I don't know that language is speaking to me.” But the point is that my intent of speaking to you in your language is that is a bargain I'm trying to make. So these other thing of hatred of things and so on. This is again what Duncan was saying. We've been given a theory and a narrative that is actually these languages are bad. I’ve followed them. Sometimes I'll try to write in a newspaper and then I give up because there’s somebody who said don't speak local languages in offices. Again, there it is assuming all of us are so terrible that when we just sit over there we just ignore everybody else and talk.
It is true, you don't need one language in the whole office and then there’s two people because, if it's an office, we’re talking about official business. You'll miss a point because everybody's is talking about that thing. But I find it very, very problematic. Now, the thing is that even in the classroom, I was educated in this place and they didn't go to good schools. If you go to the class and the door closed over there and the teacher was saying, “Now we’re learning in this thing.” In English, he teaches us or she teaches us and looks at us and sees we are not understanding. Then she does exactly what professor Mbote is saying, “Now let's talk in our own language.” And so on. I still remember in Aquinas high school, Emmanuel Ogot was one of the guys who understood things. He lived in Makongeni. So after the teacher calculated half-lives and other math and he was actually not getting the right answer, after school, we stayed there and spoke sheng.
Really terrible sheng. It's like whatever. I found people who had figured out how to look at the logarithm tables by themselves but they couldn't explain it in English, they couldn't explain it in our languages. Knowledge is over there. So my point is that, write all the policies you want, but what you're really doing is writing about the language of publication. What do we need? I am not saying sell me a house and speak sheng the way you want and then before I know it, I don't even know whether I bought the thing or the words you're using actually something else. That is something why this profession exists. You can find a legal mechanism of doing this. But when I'm negotiating to buy a piece of land, I'm not speaking any of these things. Now this is important to me because then only are dealing with the issues you're dealing with here, you will find people writing papers and giving us publications that are saying a lot of wonderful things about our communities. I've seen people talking about issues of childbirth that something goes wrong and some issues start to happen and then marriages are in trouble, very intimate things and all the other stuff. And somebody finishes saying these things and you ask them, “Now, do you speak the language of the community that was doing this?”
“No, I was doing it in translation.” How do you do things in translation when there are issues that are intimate and we know our languages? No language I've ever encountered in Africa that just talks to you directly about anything. You just say, “You know what? This is what was happening and so on.” No. Then it turns out they were actually translating. When I look at the students that we have taught who did a good job, one of them went in Rwanda and tried to talk about people who had been raped and all the other stuff and in Congo. Try to ask them, nobody talks. Then she realized when they sit together like this and all the other stuff, they actually start talking to each other. So she decided to start a choir. So she's setting this choir to sing a song. She was a musician in our school. As they are singing, when they take a breaks, the person next to the person starts to say, “You know what? Let me tell you what happened to somebody that I know.” They start talking about these traumatic things and before you know the person I'm telling you about was my sister, whatever it is, it turns out at the end of the story, it is me.
The things you don't pass a questionnaire and get answers from. And so these things cannot be done by you not knowing the language and actually doing these things. And then of course, what did you get? One time, and this is the last example, I went and filmed Muhammad Sheik [Nabahani 01:45:31]. He was a very good friend of mine, who was my mentor in Swahili Studies. I went and filmed him. He talked to me, the video was there, and once sitting in my own house, I was visited by professor Anne [Biashtek 01:45:43] and I was showing her my videos of Swahili land. And then she looked at it and she said, “These are my videos.” Now, so we say … I looked at her, “Why is it your video?” It turns out … Then I waited for the video to play on. Then he saw me in there, because I was interviewing the person, but they were just taking a shot. Then she … Then I said, “No, this is me.” And she said, “Wait a minute, I had the same video.” What we discovered is that Muhammad Sheik Nabahani was sitting in the exact same position under a tree, wearing the same kind of thing and speaking. Now me and professor Anne Biashtek, I think she's at Michigan state now, were interested in similar issues. She was one of our mentors. She's a mentor who was a supervisor, I think Kimani wa Njogu, the professor and so on. And so very, very highly valued person.
Then I realized what happens is that you get the same data, the same way from the same person and so on. So, when you're looking at these sorts of things, it may be then that Sheik Nabahani telling us about the story of … the history of Swahili, of whichever book, but in the end it turns out that if you have informants, you see these guys who translate all the time when you follow them around. They actually, you ask them a question but they have answers they give people. So you now start carrying either fake answers and … Because somebody who was a researcher loved an answer, they start giving you that. My point is, basically, a language policy is not to be written in a boardroom. It is to actually be observed and reported on what's really happening. So we can’t be lazy and sit around here and say this is what you're going to plan. No, no, no. Go find out how the 95% of Kenyans are actually dealing with issues that involve law. In Ghana, I met somebody called a professor [Tuguba 01:47:19] over there. Was one of the students also in the time of Judge Joel Ngugi and company at Harvard.
And he was telling me in Ghana it's the same thing. But in Ghana they are more advanced. Once they rule the case, they take it to court and it's registered. So that's how they've connected this to … Maybe that's also done here, but I'm ignorant totally in this place. If I say anything about law that is not right, you just ignore it. But in this place they were doing that kind of thing with [inaudible 01:47:47]. So my point is, basically that I really endorse the language planning that you're suggesting professor Mbote is that it is out there. Go find out how people are living life and then tell us how to do it. You can't actually … But we need the technology of an official language or we translate things and make them formal. But don't confuse that with the thinking and the thought system.
Speaker 7: Let me start by saying that when Professor Mbote was talking about thinking in mother tongue and that some things you so easily know what to say in mother tongue, but English, you struggle to find the word to say. Just on Monday I went to buy sweet potatoes and I love the crumbly type of sweet potatoes. But trust me when I want to ask the person selling, I could not … The words crumbly texture could not come to my mind. But the Kikuyu word was so there, so I'm looking at the gentleman and I'm like, [foreign 01:48:45]. Sorry, let me use English. I don't know how to explain it in Kiswahili what I mean. But in my mother tongue, I have the word. But I think from the way I was speaking, the gentleman realized we speak the same family language, so he tells me, “Just see it in your whatever.” So I told him, “[foreign 01:49:06].” Which means that crumbly. So he's like, “[foreign 01:49:09]. I'm not sure whether they have, because we have not cooked them.” And you see, just one word, we were able to communicate and I could just not think of the English equivalent.
But my mother tongue equivalent was there, pap. So, and I'm moving on to what I'm to present about. It is clear to me that the language discussion is interesting. From yesterday, today, I'm being challenged to think about law and language, law from language and this carries on from the discussion last year. So last year I talked about teaching in Kiswahili. And this year we were requested to further that discussion. And so I seriously sat and thought on the issue of the place of Kiswahili in teaching law. Now, after what Professor Mbote has just said that we should not streamline or pick on certain languages, I put a disclaimer. I do agree with your point that it's true, law should be accessible to people in different languages; because even though we say that Kiswahili is the national language, not everyone understands it. My grandmother will speak two words of Swahili to her in-laws who are not Kikuyus, and the rest of the five words in the sentence are in Kikuyu. So even if we say Kiswahili is the national language, there are still very many who cannot communicate in it.
But the reason for picking Kiswahili is based on the policy, the language policy, which we have been challenged further about. But since it is what we have to work with, then we cannot ignore it. Then also looking at our constitution, because interestingly our constitution, if you look at it, language is a human right, because according to article 44, you cannot discriminate on the basis of language, which means my interpretation of the inference I can draw is that, languages is a human right. You should be permitted to communicate in the language that you understand. Now as a country, the constitution goes further to say that the languages that we generally, at the national level, that we are to use to communicate for everyone to understand, is English and Kiswahili. Sadly when it comes to teaching, we really have not followed that path. It is only now … and I don't even think it's being done much. We have just taken the first step and this first step being … and I confine my discussion to teaching law.
We have only began that first step because we are now saying that a student who still scored a grade B in Kiswahili, will be considered to do the LLB degree, the same as a student who scored a B in English. But that's as far as it goes, sadly. What else has been done? So again, and this ties in with what has been said, the policy has been put down and that is it, but policy cannot implement itself. There need to be other measures put in place to ensure that, that policy is brought to life. And one of the things that has not been done is making us to be proud of Kiswahili as a language that we can use. And the beginning of this is from the pre-colonial, the colonial and the post-colonial stage, because, when the colonialists came to Kenya, they realized one, we cannot permit these people to understand English. If they understand English, it means we are equals; and they wanted to create that divide of master-servant relationship and that is why they encouraged the learning or teaching in Kiswahili, but you see it was not done for the right reason. It was done for all the wrong reasons.
And that is where you discover for example, the Kikuyu community decided to create … to have their own independent schools when they realized, hold on, to be equal with these people and be able to fight them, we need to understand their language. So, they created their own independent schools where they could freely teach English. Now, after some time you see inadvertently the white man is telling us, “Okay, use Kiswahili”. Then after World War Two, the colonialist realized, “Hold on, this language is actually now generating some positive aspects, it's uniting these people, it's strengthening and emboldening the nationalist movement.” So again, the move to remove Kiswahili as a prominent language to be used again is put in place, and this is where it is reduced, removed from a subject that is taught in schools and everything now should be taught and examined in English. So, you see from the trajectory there, as Africans, we started having this mentality that to be equal with these people, to be seen to be the same as them, I need to speak in English, I need to understand English.
So sadly we began … how do I put it? We began hating Kiswahili as a language, and we have propagated this since then. In as much as Kiswahili is taught in primary school and high school, just listen, even very few Kiswahili teachers teach it to the passion at the primary and at the secondary level where you see, they really love this subject and are teaching it for all the right reasons. Mostly it is, I was a located Kiswahili to teach, so I teach it, such that once they leave the classroom, they do not even require the student to speak to them in Kiswahili, we communicate in English. It is only when we're in class that we need to communicate in Kiswahili. Whereas for most of the teachers who really love the language, those were the teachers you dreaded meeting on the corridor, because it meant you have to address them in Kiswahili, [crosstalk 01:56:18]. Now you can imagine trying to create that sentence in your head, to communicate in Kiswahili. At the workplace, every documentary we write, everything we do is in English. You can't make a presentation in Swahili.
Look at the programs we have on TV. Which programs do we say we want to watch or many are encouraged? It's only now the local content in Kiswahili is being encouraged, and ironically by a foreigner, because mainly you find it’s MNET that is coming to encourage that in the country. We still find that watching the Kardashians and the rest is better for us. So, we have all grown up being made to feel that Kiswahili is less of a language. We carry that on in education and even when we come now to university, that would explain why we said you need to have a B in English, Kiswahili no. And that's where I'm saying then, we have policies that we are not implementing appropriately. We are not generating the interest, because if you listen to the Tanzanians speak in their Swahili, they are so proud of it and will speak it anywhere. It doesn't matter whether they are abroad, whether they are in their country, in Parliament, they'll speak it proudly, we do not.
We feel that, I need to speak Swahili when [foreign 01:57:44], right? That is where I need to speak in Swahili so that these people can understand me. So we don't even make an effort to build our vocabulary. And a very good example; how many of us know that KTN, I believe it is on Friday, has a program where they bring two people, Munene someone, and another expert in Kiswahili, who teach you new vocabulary and they use of Kiswahili words. How many people know? A very interesting program segment by the way, for around 15 minutes or so. But most of us will say that, I really don't need to know that because Kiswahili is not that important. So to me that would be one huddle that needs to be eliminated if we are to be able to use Kiswahili in teaching. And our personal experience, when I was in standard four, I have never forgotten … the Kiswahili teacher comes to class and asks for the Indian Ocean, what it's referred to in Kiswahili. I knew I had had it somewhere on Kiswahili news, because growing up I used to after school Wednesday with my mother, who used to listen to Kiswahili radio, so I had picked up quite some vocabulary in Kiswahili.
So I racked my brain and quickly shot up my hand and said, [foreign 01:59:11], and everyone is looking at you and the teacher is like, “Clap for her, very good. Correct.” And I felt so proud of having known the answer, and my love for Kiswahili began then; so that by the time I proceeded with upper primary and secondary school, while everyone was saying Swahili is a boring word, it's so difficult. These [foreign 01:59:35], I can't understand them. I kept thinking, “No, they're so straight forward. Actually it's easier than English. It's easier than learning English.” But you see it’s because of the love that had been created. And that's what I'm saying … and our starting point should be developing and encouraging the love for Kiswahili, then we will bridge the gap and be able to use Kiswahili to teach. The other aspect is the resources, and developing the required resources and this will develop from the love.
Once we develop the love, then we can create or develop these resources, because right now, we do not have textbooks written in Kiswahili. It's a daunting task to be honest, to sit and write. But if you have the love and you really want to communicate, I don't think it's an impossible task. And that would definitely be required, if we are to teach in Kiswahili, because you are not going to be telling students, you teach them in Kiswahili then you tell them, “Go and read Winfield & Jolovitz, page so and so.” They can't even, so they're wondering, “[foreign 02:00:56], how do I understand some of the terms you were saying in Kiswahili, because what I'm now reading is in English.” So again you're giving the student the task of translating. And again, a lot can be lost in translation. But if you have the people who love Kiswahili who are lawyers, then we can start writing books in a language that they understand. And an example to illustrate this is, we just have to look at South Africa. In as much as … and there has even been a case that went to the constitutional court involving the Free State University, where it was said that teaching in Afrikaans now should be outlawed, because it's against the South African constitution.
But partly I understand where the court was coming from. It is erasing the past and what Afrikaans stood for. But then what about even those Africans who were brought up speaking Afrikaans? Because that is an issue that I don't think South Africans at times, they sweep under the carpet. There are even black South Africans who don't know any mother tongue. They were actually brought up speaking Afrikaans. So for them being taught in Afrikaans the way to go for them. And so, even law books have been written in Afrikaans for them, so it's easier for these students to fully appreciate the subject. And that's why I'm saying in Kenya we would need to also start from there, the resources. So the resources in terms of books, and in terms … The teachers who are well equipped on how to communicate in Kiswahili, because you don't want a teacher who cannot appreciate [foreign 02:02:47], but which I understand has changed, not what I studied, and communicates the wrong thing to the students. So that would be the challenge.
And that is a very real challenge, because even in South Africa where they have … is it seven or six official languages? Translating the law that has been passed by parliament into all these languages is next to impossible. And they have a body that was created specifically to do that. So our task is yeah, greater, but it is also easier by virtue of the fact that, there's one language which we can say we are going to use for now, before we can move up to all the others. Then the other challenge would be … And that one is very personal to us lawyers. Dr. Kabira and I teach legal research and writing to the first years. And we are constantly telling them, you need to communicate in plain English. And most of them are looking at us, what do you mean plain English? I came to law school to be a lawyer. I need to be able to use those big words. I need to write them down, so that when I speak, the public knows, [foreign 02:04:06].
But then the problem is this, when you talk in Legalese, there is a problem when it comes to translation; the meaning will be lost. Because some of those words … how do you get the essence of what somebody is trying to say in Legalese, to be able to translate the exact same message in another language? So we too as lawyers have a role to play. We need to learn how to write in plain language. Just our own constitution, let's not go far. If we were to attempt to translate, which actually there were hopes that the constitution should be provided into an English version and a Swahili version, please, and I'm willing to have this discussion further. Somebody tell me, how realistic is it to translate our constitution into Kiswahili and ensure that the meaning that was intended in the English version is what is transmitted into the Swahili version. And one of the main problem in my view is because of the language used in the constitution is not plain English.
We need to start from there. I think from what I'm seeing, those were my main points. And in the past week, a colleague shared with us some podcasts titled Citing Africa. And they were talking about we need to rethink about the generation of knowledge in the south, or from the south. We need to stop borrowing things from the north and just transplanting them for ourselves. They are not working. We have unique aspects about us that we need to appreciate and develop. And I think language is one of them.
Speaker 8: Last year at this conference I spoke a little bit about law as a carrier of ideas, and a transformer of societies. And specifically I spoke about how the law through the technique of colonialism had carried the concept or the idea of religion as a distinct anthropological category, to this part of the world. And we spoke a little bit about how various distinctive African languages, we didn't have the word for religion, because religion … Or ideas of faith and belief are intricately interwoven into our existences as different communities. So today I wanted to push that conversation a little bit longer, but go a different direction. A lot of the esteemed colleagues who've spoken before me have spoken a lot about the languages themselves. I want to take a slightly different approach and speak a little bit about the structure of the language, or the posture of the language of law, as opposed to the actual languages and what work I understand that structure, or that posture of the law to be doing.
But first, I’ll say something small about what Professor Mbote said about the existences outside of formal law, and how the language or those existences cannot be English. I have children, many children, who are constantly doing naughty things and I am trying to teach them my mother tongue, and their father's tongue and English and Kiswahili, that project might not be going very well. But every now and then I will, when I'm very angry with them, express myself in the language that is probably the truest to me. And I will speak to them in Kimeru and say something like, [foreign 02:08:27] … What is that? [foreign 02:08:29]. It literally means, the two of you cannot get along, you are as separated or as … You're crumbling like the poo of a leopard, which is I guess concerning to be saying to children. But that's just to speak a little bit about this existence is in the language that governs this. Anyway, so my paper idea which is evolving, I'm going to call it sexing the law of the … the language of the law. Sexing the language of the law.
And it's an initial thoughts, very early draft, on how as I said, the structure or the posture of language creates what I understand to be implicit or tacit, hierarchies, zones of exclusion and how they reinforce or retain structures of power. And I want to differentiate these hierarchies that are created by the language of law, from the hierarchies that are created by law proper. So you have the law for example saying let me see. There shall be a national government, and county governments, and the two shall relate in this manner. There will be these kinds of officers and so on and so forth. I understand that should be, formal law creating that instructors of power, certain hierarchies. But what I want to spend my time talking about is what I would call, tacit or implicit or incidental hierarchies that are being created by the structure or by the posture of the language. I think that the gender is a very useful lens, to use to examine this idea of the laws creating these hierarchies, zones of exclusion and reinforcing structures of power. So that's sort of where I'm going to be coming from. When this paper is a little more developed, it's going to draw examples from tax law and I think somebody spoke about tax laws not being a very personal experience, but we are in June and the income taxes returns are due.
So I'm going to drag examples from tax law, from sources of law basically, first principles from family law and specifically from rape law or sexual offenses law. But for the purposes of today's conversation, I'm going to limit most of my work to tax law and we'll just really very lightly touch on these other bits. I have to pause and say that, my good friend, Ngina Mutava has helped me to conceptualize my ideas on tax law and I am grateful. So in tax law, we see this idea of the man in the state as very clearly visible. The posture or the structure of tax law creates very clear hierarchies in my view. And I'll give you some examples. Any person in power, whether we are talking about income tax act, whether we are talking about excise, VAT and so on. Any person in power, and by that I mean any commissioner, any official, any officer, is exclusively male. It's not uncommon. That has been the language of our law for very many years, and we usually have that problematic clause that closet stays, “when we use one gender we really both genders.” But I think around this room, we know that that is actually an exclusionary thing, and the law takes a certain stance. Anyway, so when you work your way through tax law, you see that any person in power is cast as males specifically. It's the big boys club of exclusion. Beyond that, you see that the law expects its subject, so tax law expects its subjects to be male. And when it is speaking about a female person, it is actually a misnomer, an awkward fit or the female as an attachment to the male person; it considers to be its primary focus, locus of its law.
So, why this a problem? Why is it a problem that the law considers the person upon whom it is acting to be male? Let's probably pause a little bit and think about design led thinking. If we step outside to the bathrooms, they used to be here. Are they still here? The bathrooms here, you will find in the women's bathroom a number of stalls, maybe six or so. You will find a similar number in the men's bathroom and a line of urinals. Yes, that is the standard look and feel in most public bathrooms. There will be a line of urinals and stalls with the sit down toilets. And then for the women's bathroom it will be just the stalls, because, well going back to the peeing conversation, women don't, most women don't pee standing up and we wouldn't do it in a urinal.
Now you will also notice, where you are in social spaces, there will always be very long queues in the women's bathroom as opposed to the men's bathroom. Why is that and why hasn't somebody used design-led thinking to try and engineer ourselves out of that problem? The reason you have that is, most people when they come to the bathroom in a social space, they're coming to have what in high school we used to call a number one. They're coming to pee, to use Professor Mugane’s language. Now, men will come and stand in a line do their business and be gone. We don't have that similar space for women. Every woman who needs to use a bathroom has to stand and wait for a stall to be clear, use the bathroom and go.
But also women more often than not in social spaces whether you're talking about a mall or so on are tasked with care work for younger children, and for older parents and so on. These people usually will need to be accompanied to a bathroom. So in the queue for the number of stalls, we are also, we have mothers in there with all of their children, boys and girls waiting to use the bathroom. We are taking older people to the bathroom and men just walk into the urinal, do their business, walk out, right? So that explains why they we will often see longer queues. In the population of we have women using the bathroom; they're going to be probably pregnant women or breastfeeding mothers. And so those kinds of people, people with different physiological needs that probably are not similar to men and will need to use bathrooms more often.
Pregnant women will go to the bathroom often, but design-led thinking hasn't helped us engineer ourselves out of this problem. I give this example to show why a law that considers one type of a person as the standard can have blind spots, right? So, we always think as the person being acted upon by tax law as a man, then the law is missing certain things. It has certain blind sights. We see tax law bringing in women in very sort of small, but also condescending and … What's the word, disempowering situations. We are speaking of women in tax law, only when you talk about a wife’s income, right? So section, I want to say section 45, it could be wrong. Talks about a wife's income shall be deemed to be the income of her husband for purposes off of tax, and I think of tax returns.
Now, there's many things that wrong with that, many things wrong with that statement. Not only does it place an obligation on a husband to actually file returns for their wife, and that is an obligation which ought not to be there. When you peel back a few of the layers, then a few other problems begin to emerge such as, u, the law here is … It's trying to say … You could argue that it is an administrative tactic, right? We only want, we want to make filing returns much easier and so file for your family, make your life easier. But what it is actually doing is a distributive sort of technique. It is saying that we understand household income to be the husband's income. We understand the power, spending power, household power to rest in this one person and that person ought to speak for everybody else.
The state is quite simply saying that we don't see this married woman. Okay. I don't want to deal with the married woman as the state. I want you to have a guardian of sort. I want you to have somebody to speak for you, and let your husband do the speaking for you. So, it is infantilizing in certain ways. So the language is disempowering. So, those are some of them more explicit sort of ways that we see the law behaving and disempowering women. It also has these ideas of curvature of course within these that talk about, the wife as being an extension of her husband. We again see in tax law, the wife being mentioned when you're talking about her husband dying, but we never talk about the almighty husband dying and what the wife … We never talk about the other way around is what I mean. I'm getting in trouble now.
What's also very interesting is that in tax law, the unmarried woman, the fem soul is not even a player. She's not even coming up at all. The standard is this man. He might be married or unmarried, we've dealt with him. When a woman does come up, she's coming up in ideas of dependency, but she's a married woman and an unmarried woman we only speak of how when we say, that if the man and his wife are not living together, then the wife will file her own returns as if she were an unmarried woman. So then married woman is like the bottom feeding, sort of character in this tax law setup. Now, tax law is also very masculine and I'm going to, that is a very problematic word because I do not want to paint masculinity with one very broad brush.
But taking it as it's very standard, very uncomplicated or nuanced form, then you're talking about tax laws being rigid as being very unuanced, as being very dense and very structured and not having contours of thinking about these other sort of interesting ways, in which the law moves and behaves. Beyond that, I want to say that tax law, if you take my idea of tax law as being masculine, and uses language like enforcement, right? So, KRA considers itself and enforcer of tax laws using very masculine language. Then you can also say that tax law is disciplining femininity in a very interesting and condescending way. And I'll say why I give that example. You have higher taxes for products that are almost exclusively used by men, by women, sorry, things like weaves for the hair and cosmetics. Tanzania, I think just very recently slapped at 25 of tax on weaves.
I understand that people have very complicated relationships with weaves, but I am not sure that we ought to be doing that. Now, what for me is more problematic is that this is considered, its excise duty which is a sin tax. It's what we slap on alcohol for example. So we are telling, in the same way we tell people do not drink, and if you're going to drink, we're going to slap you with a very heavy tax for that because that is a sin tax, then also do not wear a weave. And if you wear a weave, we are going to slap you with a very high tax for that. Now, we can giggle about it and probably we should, but the sense in which it's very condescending. It's disciplining, those things that are considered extremely feminine or inconsistent with this need to just be very business and very formal. It's superfluous.
I don't want to spend much time talking about the other elements that I was going to raise, which are how we understand the law as condescending in sources of law for example, because I think Duncan, I think Professor Mbote both spoke a little bit about repugnancy and what the language of law is doing there. In my own scholarship and what I'm particularly interested in, which is family law and succession; you still see the language that describes a wife for example, as inherently dependent. What is concerning and the blind spot that the law creates with that is that, it actually in some cases disadvantages men because husbands are not “dependence” as of right. When we speak about, there's a section 26 of the Law of Succession Act, talks about approaching the court for dependencies.
So if you've been left out of a will or you're not inheriting under intestacy rules, you can approach the court for a reasonable provision. And then it gives a very clear list of who is a dependent. Now a wife, even a former wife is considered a dependent as of right. Husbands on the other hand have to prove that they were actually dependent on their wife before the wife died. So, this idea of the law understanding itself and creating wifehood for example, as a dependent position is problematic because of these kinds of blind sights. I think probably a lot of us know the complications that come with section three, five of the Law of Succession Act, and the definition of a wife to include “an illegal wife” in life but a wife in death. The other ideas that I will hopefully explore a little more in the paper when I talk about rape law, are ideas of how we actually define rape and whose experience are we actually thinking about as we define these things.
My final thought is one of how, or does the Constitution of 2010, Constitution of Kenya 2010 disrupt this idea of gendered legal language structures. Does it actually, how does it disrupt this gendered legal language structures, or does it actually disrupt legal language structures? It is what I want to spend a little more time thinking about. I want to thank you for listening and I am done. I think we're close to lunch.
Mbote: We spoke last time. Konstanz and Rosa here gave interjections at the meeting we had. We can’t continue talking. We want, you know like what you talk, the sheng you were talking about last time. I want to read about it but where is it? It was spoken about and we moved on. So, this time we would want to memorialize what we are talking about through a publication. And we can, people hear of a publication and think it's rocket science. It is not. What we could do, there are two ways of going about this. We could to have the first one as a special issue of the East African Law Journal. Then work on having an online journal. And it sounds; it is much easier than it sounds, because I ran with a colleague an online journal, law environment and development.
What you need is dedicated reviewers and editors and I don't consider myself analog, but I wouldn't be the person that deals with the loading, etc. But that is something that somebody, even Isaac here can help us do. Then there's many people we can work with. So, we need to have a journal on law and language, the modalities. The first one can actually be … And you know, the special issue is going to be online because the East African Law Journal is on HeinOnline, but we need to have some hard copies, which would be a way of introducing this new platform to scholars and to people in this discipline. And then of course the online one now, we can have the HeinOnline this special issue, but begin working on a new online journal.
Over and above that, we can also think of having one of the conferences, as a dedicated a conference and then publish a book of edited chapters. The menu is unlimited. You just need to go and pick what you want. Then the other one is introducing the course on Kiswahili for lawyers. I think that discussion already started, and what we want to do is to engage our colleagues in the Kiswahili department, see what we can do about that. And then, we could even have it as a module on the open distance and e-learning. Because you see, when you think about teaching Kiswahili, your mind like for me who never learned Swahili, if I speak Swahili it is because of my Bantu background, but I didn't learn Swahili anywhere in my life. So, when one thinks about it and I think that's why there is resistance, but we have the open distance and e-learning campus.
So, prepare a module and have it out there, which lawyers can actually access. And it's actually a way of teaching it beyond the classroom, because it's accessible in a more, to a wider audience. And then launching translation services, again the University of Nairobi, Professor Mutiga has the center for always forget, Center for Translation and something. And so translation services are already in our curriculum, and they are training translators. So what we would need to do is to package translation for law. I'm seeing all the things we are talking about, many things people dream what Sirleaf Johnson says that, “If your dream doesn't keep you awake at night, it's too small.” The dreams we have here are attainable. They are really low lying fruits. They are not like … We wouldn't be saying, how much money do we need?
We have a campus on main campus and we've worked with the people in O’Dell, Jane Mutiga was at the last conference, very keen. Professor Habwe is a person who will be more than keen to get into this debate. And I think beyond here, is getting more people into this debate and especially East Africans. I think especially now that we are talking about Swahili, we are talking about East Africa and multi-lingualism, let us think about having more people from the region in the room, even people from South Sudan, people from Rwanda. You see, a country like Rwanda had laws in French for the longest time, and then they just moved to having them in Kinyarwanda, English and French. And even, and then you know Swahili is also one of the languages that they have. So, what is it that we learn and how can we work with that?
So in essence, I think we have enough to keep us busy for the year. What we will then proceed to do, especially on the papers, I think when we will need to agree on a deadline, by which our first full draft has to be submitted. I don't want to be dictatorial about that. So, I think there's going to be, people will talk and we agree. But my experience is you, a paper is only, is written once you purpose to do it. You see, once you put these ideas away, in three months you will have to come to them a fresh. So it is best what you're talking about fleshing them, flesh them out. And in writing, we all have to be willing to be vulnerable by writing a paper that people then say, “You could have pushed here or pushed there,” because it's all friendly fire if there is anything like that. So we'll come up with that. And also we'll agree on the, what citation style we will and share that as well.
And also agree on an editorial team, because editing is not easy work. But because it's a special issue when we put in the application to the East African Law Journal, we must designate who are the special, the guest editors for the special issue.
John Mugane: It is not true. I wanted to put a disclaimer. It's not true that if you're teaching at Harvard and you sit with somebody on a table, they say, “We're going to listen to the Harvard guy and not this other person.” In fact my experience is, that life became way more difficult, because which is more preferable, to shoot down somebody or to actually show them how … Yes, there is that aura of those kinds of things but I don't believe it. I think, those who are there and talk, some of them are seriously knowing what they are doing just like here. And also, I'm not talking from another university because right now the collaboration you're talking about is not [inaudible 02:34:33], [inaudible 02:34:36] and so on, are the ones there.
Right now, there’s a full class over there from all kinds of places, from this department, from this school and other places that are still learning there. So, the world has changed very much and what we do for instance, how did I show up in East Africa, look around and decide, you know what, Professor Mbote does the things that she does and all your stuff? And she also chooses to come and visit with me. She has a choice of the world to actually go to as you all know. And so what we do is we look for people, who are doing things of interest and if the place is serious, that's why we try to stay as much away from power in terms of the, so that we do our work first. I like the forum we've had here today, and I think it's a good one to follow Prof in the future, where we have the bells and whistles in one day, then we have another session the following day, where we really sit down and have more people.
This was short notice, so lots of people apologized. And that is one thing. The other part is collaboration. The collaboration means … I don't want to say collaboration; I actually want to say after we stay here for a while, out of the 10 ALDPs, the first I don't know six or seven or just on campus, but I stopped doing it on campus because Africans showed up there by the hundreds. And when they came out that they found one or two colleagues coming to help me out, they didn't see a lot of other people coming in. A few students were coming even [inaudible 02:36:04], when we were over there, we'd have all these people sometimes at lunchtime, a lot of them came from West Africa. They converted the entire building into mosque. They had to pray and all the stuff I told, just lovely to actually help the place.
But he came with such respect, they came being hundreds of them and if their leader stood up and raised their hand like this, they all kept quiet and we proceeded. They told me, “What are you doing here? Come to Africa.” So, three years ago I was in Conakry, but then in Conakry I discovered I can't go to a place whereby not a hundred people came, but they came from different countries. All of them wanted to talk about their languages. We couldn't even have panel, they just sat in front and we just … Finally we said, “[inaudible 02:36:46].” I talked a little bit of time, but then all of them were actually sitting there and it was just, there's a lot of interest in these things and so on. Now, then I saw West Africa, I don't understand it very much and of course charity begins at home.
So whatever they were having as charity for me came from here. And to cut a long story short, it is to say, then I'm coming here to do it. I also run something that actually … I direct something that takes me to South Africa every year. In July in Johannesburg, and there I have also asked for just a little panel to talk. And if you didn't have as much hustles to get visas into South Africa, I would have wanted somebody from here, even if a student or a professor to actually join me, but this was too short notice and then you'd see what kind of discussion we’re having there. In other words, there is a conversation going on. One of the suggestions which I can't talk very much about is, after us holding it here for several years, we can actually say, “Let's take it back to Cambridge.”
Now, that means that a lot of you are global people. I know, I see you all the time in places going. We can do that there, but also there is a mechanism of presenting when you're sitting right here, and we can actually have follow. And last time when we were in USIU, Isaac will tell you, we streamed. We streamed, some of the other people were seeing it from far, and therefore we can present out there but then also from here. But the big thing is that I'm going to a place that is dot in the ocean. Harvard students are learning it, but then the place is small. Here, I prefer it very much to stream from here because then the world can join us. But on occasion, I also want for people here to feel free to visit us, on a particular time and we can do things together for part of the collaboration.
And so, this is something that I find very useful and I think, I endorse everything that Professor Mbote is saying. We get some, some publication going and also, now turning to the phase saying thank you very, very much for being so patient. I don't know how one sits for those hours, just listening. I hope you were as riveted as I was. Everybody had a lot of things that we could have conversations forever. And that's what I tell all my students, “Have conversations with people.” I have had conversations on language asking people, “Why do we tell people you love them, not in our languages but in European languages? And they will say, “No, come on. That's in-romantic.” But then I told them, “Let's all try in our languages. Those ones who are there, they try to say these things.” I said, “I don't think I love somebody that much.”
They started reducing it from their language and saying, “Let's stick to English. English is a little distancing and all the other stuff.” This is the thing that I know we have with knowledge, where are you vulnerable and you speak your language and so and so. Thank you for indulging with this question, but like I said and I'm really delighted that Professor Mbote is seeing a problem with the whole idea of having pluralism, that actually then comes around and says what we’re going to do. For me, I see the world running. The way I see it running is that you don't go; school should reflect society and not society coming to dictate. I think the language question is not going to disappear. It’s going to be multiple and it's going to go on, but thank you each one of you
My email should be distributed to everybody. I don't know whether I'm still giving things to distribute or email. We didn't take a list of the people attending, but let's try so that you feel free. You've seen me, right? Everybody has seen me. I am not pretentious. If you write to me, I'll actually respond and I hope you know to that we can actually answer back. Like for instance, if there’s something we said here that you’d want to follow up is not to go and say, “I could have a headache because I never asked.” We need to be talking. And when you can't find me, then I’ll actually tell you how to find me because one of your professors [inaudible 02:40:48], used to use to know how to reach people, because we need to be keeping a conversation alive, but I don't want anybody to feel neglected.
