My dogged struggle to free Kenyatta and the Kapenguria Six from jail

Sunday July 7 2019

Jomo Kenyatta

Jomo Kenyatta (centre) and Daniel Moi (third right). Moi first met Kenyatta in Lodwar where the latter had been incarcerated alongside his Kapenguria Six colleagues Paul Ngei, Kung’u Karumba, Bildad Kaggia, Achieng’ Oneko and Fred Kubai. PHOTO | FILE | NATION MEDIA GROUP 

FITZ DE SOUZA
By FITZ DE SOUZA
More by this Author

In this third instalment of the serialisation of ‘Forward to Independence’ the author reveals insider details during the trials of Kenyan leaders, including Mzee Kenyatta, who he represented in court. 

On October 20, a few days after the killing of Chief Waruhiu, the newly appointed Governor Evelyn Baring ordered a State of Emergency to be imposed throughout the country. On the streets of Nairobi troops and police were raiding houses and hauling people out. Hearing the commotion, I locked and bolted my door just before they passed by, banging on the wood so hard I thought it would splinter. Within 24 hours, over 183 people had been rounded up. Among them were Bildad Kaggia, Kung’u Karumba, Fred Kubai, Paul Ngei, Achieng Oneko and the President of the Kenya African Union (KAU) Jomo Kenyatta. On November 17 and 18, all six were taken to Kapenguria and formally charged with membership and management of the Mau Mau.

After Kenyatta’s arrest, we simply didn’t know what to do. I was surprised that, having expected this, he hadn’t nominated anyone to take over from him. There was the sense of being in a vacuum. Pio (Gama Pinto), who was not a member of KAU, called us together in the back room of the Garden Hotel. Although this was an Indian establishment, any gathering of more than four people was deemed by the authorities to be a political meeting, and, concerned that we were under surveillance and any one of us might be apprehended at any moment, we entered discreetly via a small alleyway. From a list of KAU members, Pio proposed Walter Odede M.L.C. to be Chairman, Muinga Chokwe acting Secretary, W.W. Awori M.L.C. acting Treasurer, and a few other nominations. Fearing Chokwe would almost certainly be on the wanted list, we also advised him to go into hiding, but like Kenyatta, he refused.

INTERNATIONAL ATTENTION

Meanwhile, developments in Kenya had attracted international attention. Within weeks of the emergency being declared, it was reported that senior British statesman Fenner Brockway, the eminent anti-colonialist, and Labour MP Leslie Hale were flying out to see for themselves what was going on.

On the day the plane was due to land in Nairobi, Chokwe was eager to welcome the two Englishmen. Despite a warrant having now been issued for him, he joined the small crowd gathered at the airport, where he was spotted by the police and arrested.

At our next meeting, it was agreed that a new acting secretary for KAU must be someone not known to the authorities, but who? Then Pio said decisively, ‘I have just the man for you my friends – Joseph Anthony Zuzarte.’ This was the handsome and amiable young man I had met at the bus stop with Pio shortly after arriving back in Kenya, the ‘honorary Goan’ who worked for Morris Motors, and who had incidentally been very helpful in obtaining spares for my car. Joe stood up and said, “I’m quite happy to help.” There was, however, a snag which someone quickly pointed out: “How can you have an acting Secretary for the Kenyan African Union with the name Zuzarte?” This was not a criticism of Joe, but how he might be perceived as a plan to split the African and Asian support. Joe had an idea though, “Look, don’t worry – if it’s a problem, my grandfather, my mother’s father, was named after a place in the Maasai lands – Murumbi.” We agreed that using this name would help reassure the Africans they were being quite well represented, and so Joseph Zuzarte became Joseph Murumbi.

The most pressing concern now was to help Kenyatta and the others under arrest. I mentioned that, in England, I had got to know the left-wing QC Dennis Pritt very well and that we could contact him to come and assist. In the interim though, we urgently needed a defence lawyer on the ground. Although qualified as a barrister in England, I could not practise in Kenya until I had been back in the country a full year, but said that Chunilal Madan, of Madan and Shah, a Member of Parliament and a very good lawyer, would be the right person. This was readily approved and I agreed to make the approach, but said I would like someone to go with me. When asked who, I replied without hesitation: “I’ll take my friend Joe Murumbi!”

MADAN AGREED

Joe and I made our way to the Macmillan Memorial Hall where the National Legislative Assembly was in session. The building was surrounded by a high barbed wire fence about 15 feet from the outer walls, and as we were not permitted inside, we asked an official to take a message to Madan. When he appeared I said: “Mr Madan, we have an important task for you, and we would be very happy if you would accept our request to be the lawyer for Kenyatta.”

Madan agreed and, shortly after, we received word from Denis Pritt that he would come from England and lead the defence. To support him, a multiracial team comprising an Indian friend of Nehru called Chaman Lall, the Nigerian H.O. Davies, and for the Kenyans, Jaswant Singh, A.R. Kapila and myself, was put together. The trial was to take place not in Nairobi, but Kapenguria, a remote town in the Rift Valley clearly chosen for its inaccessibility and to make it difficult for us to attend there regularly.

Kapenguria was a banned area, requiring a special pass from the District Commissioner to enter. Of greater concern was a notice that had appeared in the official Gazette at the same time as the arrests, announcing the appointment of Ransley Samuel Thacker QC as Acting Resident Magistrate to the Northern Province, indicating that he had been chosen as the trial judge. Thacker was a very arrogant man and difficult to work with. In court he would shout and make racist remarks, which people could get away with in those days. These extreme attitudes were thought to be why the Colonial Office had never approved his appointment as Chief Justice. But now the Government’s desire to secure a conviction against Kenyatta made him a favoured choice, giving him the chance of a brief but possibly momentous comeback. It was discovered later that before agreeing to take the job he had asked for considerable emoluments, money, a farm and other gratuities sufficient to make most judges happy, but not Thacker. But whatever the material incentive, we feared that his right-wing views alone would make him quite determined to put Kenyatta in prison. On November 24, Thacker arrived in Kapenguria, where the six pleaded not guilty before him and were held in jail. On the November 28, A.R. Kapila filed a motion to the Supreme Court for the trial to be held in Nairobi “or some other convenient place in the Central Province,” charging also that Mr Thacker was prejudiced against Fred Kubai in particular. The motion was refused. The trial date meanwhile had been set for December 3.

***

The first day I went to see Kenyatta in Kapenguria, I was therefore fascinated, extremely curious, nervous and somewhat in awe as we met. But I looked at him very carefully and tried to look him in the eye, and I must say I was stunned! It was true, I could not do it, and as we sat and talked together my eyes had to either close or turn away for his eyes were the most powerful I had ever seen. It was as if he was seeing straight into you. It was not I think that he wanted to intimidate, but he did so automatically. You felt overwhelmed by the sheer strength and magnetism of his personality.

I also realised, considering the sociable side of him that I had already seen, that he could and did warm up to everybody. He was a fantastic actor. For example, if after making some criticism of someone they should happen to appear, he would be instantly jovial and affectionate towards them, “Hello, hello, how are you!” and you would stare at him and think, good god is this the same man who said such nasty things about this person just a second ago? There is an assumption that all politicians are made this way, that they have two sides, and separate principles and ideas from personal feelings.

***

In Kapenguria, you immediately sensed there was some distance between him and almost all the other accused, particularly Fred Kubai, Bildad Kaggia and Paul Ngei.
It became clear to us in the defence team that the government was using Kenyatta in an attempt to destroy the national movement. As part of this strategy, communication with detainees was closely controlled. Kapenguria remained a banned area and one day when we visited, Joe Murumbi was hauled out of the car while I was in seeing the clients. On the way back we saw a man sitting by himself in the bush. It was Joe. The police had taken him and left him there, miles from anywhere. It was only by chance that we saw him, or he would have been forced to walk 20 miles to the nearest town, Kitale. Alone out here, there was also a real risk of being attacked by wild animals; hyenas, with their powerful jaws and limbs posing a particular danger.

Another time I had some letters that other members of the movement had asked me to take in to Kenyatta, Kaggia and Kubai. I wasn’t supposed to do this, so I kept the letters out of sight in my pockets. As I entered, the Court Registrar, an Irishman called Quinn, stopped me. “Mr de Souza,” he said, “I am afraid I am going to search you. We have information you are passing notes.” I replied very angrily, “Do not dare to touch me. If you do, I will walk out of this case now and tell the world that you are not a Registrar but a prisoner of the British Government.” He said quickly, “No, no don’t do that, it will look terrible in the international press, they will accuse the Government of harassment.” I said, “Yes that is exactly what I intend, because it will be so.” He then let me through and when Kenyatta and I had gone outside into the yard and sat down by the cattle boma to talk I slipped him the letters and said quietly, “Please for God’s sake don’t show these to anyone or they will want to know where you got them from.”

BLACK MAGIC

The Chief Prosecutor Mr Somerhough, a former fighter pilot, admitted to us privately that it was believed the actual leaders of the Mau Mau were Kubai and Kaggia. This surprised me, as Kaggia was one of the priestly types, with a church following. But why then, we asked, are you trying to prosecute Kenyatta? He replied that this was his instruction, since the whole Kenyan African movement was seen as directly or indirectly part of the terrorist organisation. I understood later how those on the outside, probably because of Kenyatta’s effervescent personality and his long campaign for land reform, might have assumed this. People were certainly inspired by him, but if it went further and aroused them to violence, was that his responsibility? It is important here to remember the frightening nature of the Mau Mau, and how any connection to them, however tenuous, could utterly poison a person’s reputation. The atrocities themselves were terrifying enough, but alongside the slaughter and intimidation of fellow Africans, the secret rituals, taking the oath while drinking the blood of a cow, a cat or even a human, however exaggerated in the public imagination, opened a deeper dimension, with haunting ideas of ‘black magic’, dehumanisation and a reversion to centuries-old barbarities.

Kenyatta would tell me many times: “Fitz, I am not the leader of Mau Mau, I do not believe in violence. I believe you can achieve your goals without violence. But in any political party there are always some who believe you have to go further, you have to fight, and I know who they are – they are my friends, they are in this party, they are with us all the time. But I am not going to do the job for the British Government and expose them and fight against them.” When asked by the British to condemn those who practised violence, he would do so, but only in general terms, never naming names. “The British would like us (Africans) to fight with each other and make this into a semi-civil war; they killing our supporters and we killing their supporters, and I am not going to allow that at all. I know what I want and they know what they want, our objectives are the same…”

It seemed then that the only disagreement between Kenyatta and those who supported the Mau Mau was the means to those objectives. “They think I am too mild, and I think they are picking on something that is not necessary and creating too much pain and suffering.”

***

Kenyatta’s trial had, in the meantime, reached a sudden and dramatic climax when, on April 8, 1953, all the defendants were found guilty of Mau Mau membership. Kenyatta asked if I would be able to make a speech of mitigation for him. After consulting with the judges I told him, yes, they would be quite interested. When the moment came, however, Kenyatta produced something he must have written earlier and began reading it out himself: “May it please your honour, on behalf of my colleagues I wish to say that we are not guilty and we do not accept your findings… we do not feel that we have received the justice or hearing which we could have liked… we intend to appeal to a higher court… we believe that the Supreme Court of Kenya will give us justice. Thank you.” The faces of the prosecutors and Judge Thacker turned red with fury. The statement had challenged the Government, challenged the judiciary, the whole set-up. The other accused were then asked why sentence should not be passed on them, to which they replied in turn:

Fred Kubai: ‘I have nothing to say. You can impose any sentence.’

Achieng Oneko: ‘I have nothing to say at the moment. You can impose any sentence you are prepared to impose. I am only waiting to appeal to the Supreme Court of Kenya.’

Bildad Kaggia: ‘I am in full agreement with what has been said by my colleagues, and have nothing to add.’

Paul Ngei: ‘I strongly associate myself with what Kenyatta has said. You can impose any sentence you like.’

Kung’u Karumba: ‘Just as you like.’

VERY ANGRY

Judge Thacker was very, very angry with me: “Mr de Souza you must have been in on this, you must have known he would make a statement like that and you have cheated me into thinking this would be a harmless speech for mitigation – it said nothing for mitigation, but was in fact against mitigation – how can you explain that?” Thacker had said of Asians that “they bite the hand that feeds them,” so I should not have been surprised by the outburst. I replied only to say that my client was an independent person and was entitled to say what he wanted in mitigation. If he ignored my instructions and decided I should not represent him at this juncture, I could not stop him, and nor would I try to.

Silence fell as the sentence was read out: All six men were to serve seven years’ imprisonment with hard labour. Supporters of the national movement in Kenya and abroad were shocked and saddened by the outcome but determined to carry on the fight.

A campaign for the release of the Kapenguria Six would be mounted immediately and it was agreed we would do all we could for them while continuing to work for freedom and equality throughout the country.

On April 21, appeals for all six men were lodged with the Supreme Court of Kenya and a date for their hearing set for July 1.

***

The decision on the Kapenguria Six appeal was issued on January 15, 1954. Judge J. Rudd’s response to the defence’s 183 grounds for appeal was long and detailed, with the 60-page treatise concluding that: “As far as Kenyatta is concerned, both the charges have, in our opinion, been clearly established against him… His appeal fails.” Of the remaining five, only Achieng’s appeal was allowed, though he too was destined to remain in detention.

© Fitz de Souza, 2019

Tomorrow read about a broke Jomo Kenyatta and his love for money and material things