Why we should celebrate Okoth-Ogendo’s life

Every once in a long while, the cruel hand of fate robs us of a giant too soon. At such moments, we forget that death is an integral part of the cycle of life. We celebrate births and mourn deaths.

In the case of Professor Hastings Winston Opinya Okoth-Ogendo – an unquestioned pillar of the science of law – we have lost a rare giant. Even as we mourn his departure, I urge that we celebrate his life.

It is not that I agreed with everything that Professor Okoth-Ogendo wrote, said, or did – in fact I disagreed with plenty. But it is indisputable that the totality of the man’s life was a remarkable gift.

I first met Professor Okoth-Ogendo in 1979 as a first-year law student at the University of Nairobi where he was Dean. I was immediately struck by the man’s physicality.

He had a concentrated intensity that was most visible on a face that was both complex and studious. You knew without doubt right away that you were looking at an intellectual – a learned thinker who interrogates and produces ideas.

There was a rotundity and solidity about the man that assured you that he was a keeper of academic wisdom. He commanded respect and attention from students and peers.

Professor Okoth-Ogendo did not attain the status of an academic célèbre without hard work. He was one of the first Kenyans to obtain a doctorate in law.

He did so at the prestigious Yale Law School in 1978 when it was unheard of for Kenyans to study beyond the bachelor of laws. He was a pioneer who made it possible for others to dream big.

For a young state like Kenya, he was a role model and a source of inspiration. It was rare for blacks – African or Diaspora – to go to the exclusive Yale Law School back in those days. Professor Okoth-Ogendo opened doors and broke barriers.

But Professor Okoth-Ogendo’s lasting legacy is the written word. He wrote with insight, clarity, and depth. My favourite piece is the one entitled “Constitutions without Constitutionalism”. There are few concepts that describe the African state with such pithiness and somber reality.

Great national charters

In the piece, he names and describes the genre of a state that adopts great national charters which are no more than the paper they are written on. His description of the African state became a pivotal influence on scholars of constitutional law.

That piece has been quoted far and wide by scholars around the globe. There are not many pieces by Kenyan scholars that have attracted such success. I only wish that he had written more.

It was because of his brilliance as a legal scholar that Professor Okoth-Ogendo was invited to teach at several universities abroad, including the United States.

He was a valued visiting professor at New York University Law School and Boston University Law School. In both schools, he exposed a largely American student body to challenges of the application of various legal subjects in Africa. He received rare reviews in those schools.

But more importantly, he became an ambassador for Africa to the rest of the legal world. Professor Okoth-Ogendo was a global citizen because of his training as a legal scholar in Dar-es-salaam, Oxford and Yale.

Professor Okoth-Ogendo loved life, and lived it to the fullest. I should know because I hosted him in Cambridge, Massachusetts on several occasions.

I was then a student at Harvard Law School and he would come every year as a visiting professor to Boston University School of Law. He always made it a point to come see me whenever he was in Boston.

My spouse Athena and I would cook for him and invite African students in Cambridge to join us. The professor would party with us and regale us with the most profound stories about Africa and global politics.

The party would not break up until the wee hours of the morning! I will never forget Professor Okoth-Ogendo’s generosity with his time – it was a rare opportunity for us as students to learn from a legal icon in a social setting. Although he looked intimidating, Professor Okoth-Ogendo was very approachable.

I know that Professor Okoth-Ogendo was not a saint. No one I know is. I am not crazy about some of the things he said or did. Some people viewed him as being too close to the Moi regime at the height of its repression.

There are others who think that he should have played a more constructive role as Vice Chair of the Constitution of Kenya Review Commission. There’s probably more. But I never heard anyone accuse him of egregious acts or violations. Did he make mistakes? Yes.

However, a life lived in full will have such moral contradictions, especially in state that is embryonic like Kenya. While I do not want to excuse anything, I think we should judge the entire life, not just several unflattering chapters.

I want to close with something that Professor Okoth-Ogendo did for me at his own risk when I was down and out. In May 1981, I was expelled from the University of Nairobi for being a student leader.

Went into exile

I was thrown into the dungeon and then went into exile to Tanzania. But I needed transcripts and a letter from the Faculty of Law in Nairobi to be admitted to the Faculty of Law at the University of Dar-es-salaam.

At a great risk to his career, Professor Okoth-Ogendo provided me with the paperwork to authenticate me so that I could continue my studies in Dar. There was nothing in it for him.

He could have lost his job or worse. But he took a stand to help an idealistic – or misguided – young man depending on your point of view. That is the Okoth-Ogendo I knew. I would not be where I am today were it not for him.

Makau Mutua is Dean and SUNY Distinguished Professor at the State University of New York at Buffalo Law School and Chair of the Kenya Human Rights Commission.