The notice issued by the Registrar of the Supreme Court convening the unusual 7pm pre-trial conference for Mr Raila Odinga’s presidential election petition concluded with a reminder: “Kindly note that all Counsel appearing before the Court shall be fully robed”.
This might seem like a curious directive given that courtroom attire is a well-established tradition which all lawyers should be familiar with.
When the seven Judges trooped into the courtroom last Friday, August, August 25, they were indeed properly attired, but they had discarded the distinctive green robes of the Supreme Court to wear brand new red and black robes that more closely resembled the traditional colours of the Kenyan judiciary.
That change, and the reminder to lawyers, reveals what might be a fundamental difference between the Supreme Court presided over by Chief Justice David Maraga, and the one led by his predecessor and pioneer Supreme Court President Willy Mutunga.
An early initiative of the Mutunga court was to dispense with the ‘colonial era’ robes and wigs.
When Chief Justice Mutunga first presided over the court in 2011, the seven judges appeared in their formal business suits, and he advised lawyers appearing that they need not wear the gowns and horsehair wigs that were a standard requirement in the High Court and Court of Appeal.
His reasoning was that the Supreme Court was a new institution and had yet to establish a dress code unlike the other courts, but he also made it clear in various speeches and papers that considered the prevailing judicial attire an archaic colonial imposition that had no room in modern Kenya.
He had the same attitude to the forms of address used in the courts, ‘My Lord’ and My Lady’, that were inherited from the English court that had its origins in British nobility.
Kenya has no such titles, though the previous Chief Justices of British stock were invariably knighted by the Queen of England to earn the title, ‘Sir’.
Examples include Sir Alfred Simpson (1982-1985), Sir James Wicks (1971-1982),and Sir John Ainley (1962-1968).
One of Chief Justice Mutunga’s first actions as President of the Supreme Court in 2011 was a circular dropping the colonial forms of address, replacing them with ‘Your Honour’, and dropping the wearing of wigs by judges altogether.
He suggested that those who had wigs could keep them as souvenirs or surrender them to the Registry.
Judge Mutunga also commissioned a study driven by Ms Joy Mboya’s GoDown Arts Centre, which after a series of hearings concluded that there was need for Supreme Court judges to be robed, as the distinctive attire lent some authority and prestige to the Bench.
The red robes borrowed from the English court were however dropped, and replaced with simpler ‘Kenyanised’ green robes.
Many lawyers and judges were not impressed by the new design.
And even despite the 2011 circular, a number High Court and Appeal Court Judges continued to wear the wigs, as did lawyers appearing before the two courts.
For many lawyers, in any case, accoutrements of the profession such as the robes, wigs and distinctive collars were a source of pride and prestige.
According to an Eldoret lawyer Alfred Nyairo, many opted to ignore the circular because it was couched as an advisory rather than a hard and fast rule.
There was also an upsurge in the number of fresh advocates wearing wigs at their swearing in, a practice taken as statement that they valued the symbols of their profession, just like it would be unthinkable to ask university leavers to attend graduation ceremonies without the gowns, hoods and mortar boards.
The judicial robes are established by tradition and custom rather than written rules.
It has been standard practice judges and advocates had to be robed in open court.
For judges, the extravagant red apparelled gown was for criminal cases and ceremonial appearances, and the simpler black one was for civil matters.
Judges wore wigs in open court but for advocates, wigs were optional.
Because there were no hard and fast rules, individual judges had already started relaxing this practice of being robed in court.
When the first Milimani Commercial Court was opened, all the judges in that division departed from the tradition of robing.
When the High Court moved to the New Milimani Court (Old Income Tax building), the judges all abandoned the robes.
Court of Appeal judges still stationed in the city centre courthouse now called the Supreme Court continued to be be-wigged and robed.
Then came the Mutunga Circular of 2011.
What was interesting were the debates that ensued within the legal fraternity
Because the Mutunga Circular was not couched in mandatory terms, judges decided to set their own dress codes within their individual courts.
The Court of Appeal judges collectively decided to drop the wearing of wigs, but maintained the gowns.
However, some High Court judges decided they will continue wearing wigs and robes and they demanded that advocates appearing before them in open court be robed.
So there is now no uniform rule and it is each judge to his own devices except where judges sit as a bench (i.e two or more) where they seem to agree in advance amongst themselves how they will dress.
When Chief Justice Maranga succeeded Dr Mutunga in October last year, he took the oath of office in the red robes and wig he came with from the Court of Appeal.
The new Deputy Chief Justice Philomena Mwilu also retained the red robes when sworn into office in May this year.
A new Supreme Court Judge Isaac Lenaola who was sworn in on the same day was attired in black robes.
Return of red gowns and the horsehair wigs is probably not a mere case of sartorial preference.
For Dr Mutunga, dropping what he considered an inappropriate colonial dress code was key to his agenda for radical transformation of the Judiciary.
With his years of civil society activism, and before that radical political activism while a lecturer at the University of Nairobi that led to jail and exile, Dr Mutunga was a surprise choice for President of the newly created Supreme Court.
He came in to shake-up a Judiciary which he considered an ossified and archaic institution that like the English courts it sought to emulate, principally served as an instrument of the nobility, or ruling classes.
His philosophy in this regard was expounded in a 2014 Buffalo University paper entitled Dressing and Addressing the Kenyan Judiciary: Reflecting on the history and politics of judicial attire and address.
Reversal of the Mutunga court dress code might therefore be interpreted as a repudiation of his reforms, as well as an indication of the conservative judicial establishment ‘reclaiming’ the court from the judicial activism of the Mutunga era.
Whether that might be seen to reflect on the philosophy and ideology by which judges might lean on the presidential election petition would itself make for an interesting study.
But it was also notable that with the new gowns chosen from a range of designs submitted by a Nairobi menswear shop JR Stephens, the Maraga bench still retained one of the Mutunga changes, and kept off the wigs.
The lawyers appearing for various parties did however have the freedom to wear or not wear the headpieces.
They also seemed to have the freedom of choice on how to address the judges, some opting for ‘My Lord/My Lady’, and others for ‘Your Honour’.
One peculiarity that remained constant was the preponderance of ‘Much obliged;
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