In praise of Omtatah, defender of law and champion of public interest

Kudos, Okiya Omtatah Okoiti. We are often told that Kenya has one of the most progressive constitutions in Africa.

The reality is that to make the provisions of that constitution have a real-life meaning to citizens, you need people like Omtatah that can challenge the entrenched interests that benefit from resisting change. The desire by several judges to remain in office beyond the age of 70, against the clear provisions of the Constitution, was a display of impunity by members of the highest court in the land.

Omtatah spotted a chance to take a stand in defence of the Constitution and, against all odds, he succeeded. In most jurisdictions where progressive laws exist, it falls upon civic minded citizens to ensure that they hold the feet of authorities to the fire until they bend to the will of the law.

The Bill of Rights in Kenya is largely modelled on the South African one. Kenyan lawyers can borrow a leaf from case law in South Africa where numerous individuals and organisations have launched public interest law suits, with some success.

One suit saw the constitutional court order state authorities to take credible steps to implement the right to housing outlined in the constitution. Another demanded that the city of Johannesburg ensure that its residents have a reliable and adequate supply of water while another sought to outlaw discrimination on the basis of illness. One of the earliest such challenges, in 1995, saw the courts recognise Muslim marriages as legal under South African law.

Omtatah and other like-minded progressives should explore ways of setting up a foundation that is dedicated to public interest litigation with the mwananchi at its heart.

It can be modelled around the Public Citizen Litigation Group in America which takes on the cases that highly paid commercial lawyers retained by powerful industrial actors and other interest groups would not ordinarily take up.

It takes donations from tens of thousands of supporters, including many small donors and over the years, it has made numerous pro-people interventions in the courts.

By pressing for the implementation of the freedom to information act and winning suits that ensure humble fellows such as truck drivers are not forced to work extra hours by greedy employers, it has improved the fortunes of millions by demanding the correct application of laws especially those focusing on consumer rights. A similarly minded organisation in Kenya could potentially have a big, beneficial impact. Omtatah and Company would just be well advised to seek to represent all wananchi and avoid being identified with any of the political groupings.

It is perfectly fine to bring litigation that focuses on “high politics” once in a while but it would be even more effective if cases that touched on the rights of citizens—and not just the powerful—such as protecting the rights of workers to unionise, agitating over the plight of street children and the homeless and other such were brought to the courts more regularly.

In the meantime, Omtatah deserves all the praise he is receiving for his public-spirited activism.

He has told interviewers that he was inspired by the sight of an unarmed Wangari Maathai, with a group of other women, taking on and winning a battle against the police and the system in 1992 at a time when only very few would dare do such a thing.

Maybe Omtatah was always cut out to be a contrarian because as he told the Nation a few years ago, he was the fifth-born behind four girls and the sibling that came after him was a girl, too.

His grandmother consequently feared that some villagers would be jealous that the family had a son and would hence give the little boy an “evil eye” which is how Omtatah ended up being dressed as a girl in most of his early days. The early memories taught him not to just go with the flow and he has led a life marked by rebellion.

He has mostly prosecuted his cases against powerful authorities in the courts and he scored arguably his biggest scalp when the Supreme Court effectively ruled last Tuesday that judges should retire at 70 as the law demands. Kenya’s most prominent public interest litigant should keep the flame burning.

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There are not too many Kenyans that will come into high public office and leave after a five-year stint without once being tainted by the brush of corruption or falling into the trap of ethnic nationalism. Retired Chief Justice Willy Mutunga is one of the rare figures to achieve this distinction. The power of that example will outlive all the other debates about his legacy and will probably be the best gift he has given his motherland.

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