Regular Column

Love, Justice and Elections

Volume 14, Issue 1  | 
Published 03/07/2017
  |

`Loving` is the title of a 2016 American film about the real-life story of, yes, a Mr & Mrs Loving, where the metaphor did match the reality. Love was indeed the driving force of their extraordinary struggle to gain recognition of their interracial marriage that took them all the way to the US Supreme Court.  Richard Loving, a white construction worker in Virginia, and Mildred Jeter, a local black woman, had fallen in love and decided to marry when she became pregnant, but Virginian law prohibited mixed race marriages and so they got married in Washington DC where it was lawful. That was in 1958. When they got back, they were prosecuted for violating the state`s anti-miscegenation law and sentenced to one year`s jail, which the judge suspended on condition that they left and could not live together in Virginia for 25 years!  They did however briefly come back soon afterwards for Mildred to give birth to their first child, were arrested again but let off when their lawyer took the blame for wrongly advising them to do so.  Once again they left but yearned to return.  After the Martin Luther King march on Washington in 1963, Mildred wrote to Robert Kennedy, who put them in touch with the American Civil Liberties Union and then began the long legal process to have their case heard by the Supreme Court, which in 1967 ruled that laws prohibiting interracial marriages were unconstitutional.  The Lovings` status as a married couple was thus formalised in Virginia.  The film ends there but we are told in a post-script that Richard died in 1975 and Mildred in 2008.

Loving
An imperfect god
All the rivers

What went through my mind when I saw the film earlier this year was that while all this was happening, Kenyan society was going through a period of radical transformation, including racial desegregation at all levels, though even during the colonial era there never was a legal bar on interracial marriages.  I was also conscious of the broader context of the US civil rights movement and its history of slavery, having freshly read `The Underground Railroad` by Colson Whitehead and `An Impressive God: George Washington, His Slaves, and the Creation of America` by Henry Wiencek, and seen the other equally moving 2016 films, `Hidden Figures`, `Fences`, and `The Birth of a Nation`.

Love of course is a powerful emotion and can give rise to all kinds of scenarios.  One such featured in a BBC report at http://www.bbc.co.uk/news/magazine-39509224 on 13 April 2017, under the heading `The joy of a Christian-Muslim wedding among Egypt`s Nubians`, which made poignant reading in light of yet another series of attacks on Coptic churches in northern Egypt.  Admittedly the couple in question in Aswan had to be content with a wholly low-key ceremony but at least it was blessed by their respective holy leaders.

If love in real life can cause difficulties, to put it mildly, it is hardly surprising that it does so in fiction too.  It is after all the stuff of literature, in all languages.  A recent example of this is the Israeli author Dorit Rabinyan`s book `All the Rivers`, about a relationship between a Palestinian artist and an Israeli woman.  It had been selected for the national curriculum in Israel but then suddenly withdrawn by the country`s education ministry in early 2016.  That made it into a cause célèbre and its sales soared.  The book has since been translated into some 20 languages; the English edition came out just over a month ago.  According to The Observer newspaper, the education ministry explained its decision in these terms: `Intimate relations … between Jews and non-Jews, are seen by large portions of society as a threat [to] the separate identities (of Arabs and Jews)!’  Well, hello! Wasn`t such rationale used to justify the banning of books by such eminent writers as Nadine Gordimer, André Brink, and others in apartheid South Africa?  To be fair, the Israeli ministry did later announce that individual teachers could teach the book in schools, but the damage to artistic freedom had already been done.

The theme of forbidden love - across class, caste and social and cultural divides - was also at the centre of Arundhati Roy`s `The God of Small Things`, and `Lady Chatterley`s Lover` by D H Lawrence, and appears in many other literary classics, past and present.  What they tell us is that love does not always triumph, that it can end in tragedies and other complications.

That happened, in real life and on our own home ground, as it were, in the case of Mrs Virginia Otieno where the law dealt a devastating blow to her as the widow of the veteran lawyer S M Otieno who died in Nairobi in December 1986.  She wanted to bury him at a place of her choosing against the claim of his brother (and his nephew) to take charge of the burial in accordance with Luo customary law.  The matter reached the Court of Appeal, then the highest court in the land, which gave its judgment on 15 May 1987, while the body lay at the City Mortuary in an `additionally embalmed` state pending the judgment. The court ruled in favour of the brother and ordered that the body be entrusted to him for burial at the ancestral family`s plot in Luoland.

What were the rights and wrongs of the case?  This is not the place for a lengthy academic critique of the judgment (though presumably that does exist somewhere), but in my opinion it was flawed, and in the result a grave injustice (pun intended) was done to Mrs Otieno.  Suffice it to say that, as the court noted, Mr Otieno was a Luo by tribe, and a Christian.  After school, he attended university in India where he obtained an LLB and on his return was admitted as an advocate in Kenya in 1960.  Thereafter, he visited his birthplace only about six times, three of them for family funerals.  He did have some social interactions with his clan members and helped them financially from time to time. `Otherwise he had dissociated himself entirely from his tribal origins.  He did not follow Luo customs … married an educated Kikuyu woman under the provisions of the Marriage Act … and paid no dowry.  He did not bring up his children as Luos and they are completely non-tribal.  His home languages were English and Swahili.  He lived the sophisticated urban life of a cultivated professional man.  At the time of his death he was living in his house near Kiserian outside Nairobi in an area formerly occupied by Masai.`

The court declared, `At present there is no way in which an African citizen of Kenya can divest himself of association with the tribe of his father if the customs of the tribe are patrilineal` (which applied to Luos), but no specific authority was cited for this proposition. It further held that Mrs Otieno could not `legally claim the right to bury the body of her husband as his personal representative`.  This was because Mr Otieno had died without leaving a will, which meant that his wife could not technically act as his personal representative until she had obtained Letters of Administration - a very complex and time-consuming procedure that she could not possibly have undertaken, let alone completed, in short time, something that the court ought, in equity, to have taken into account.

There were many other issues and arguments involved which I will not go into here, but from a broadly humanitarian perspective, there can be no doubt that a liberally minded bench could have found that Mr Otieno had done all he reasonably and practically could to distance himself from his tribal affiliations.  He and his wife had contracted an inter-tribal marriage and lived a non-sectarian life-style.   How else could he have divested himself of association with the tribe of his father?  And how could the claim of his brother, representing the patrilineal element of his ancestry, prevail over that of a legally married spouse? As the court itself observed, it was engaged `in the course of developing a jurisprudence which ultimately will have a Kenyan identity`; all it needed then was to take a bold and imaginative leap forward to achieve that as the changed profile of a modern Kenyan nation where citizens were not shackled or judged by their tribal origins for ever.

That was 30 years ago. Since then a new constitution has come into existence and the courts are guided by an enlightened jurisprudence and legal profession.  One can only hope that if a similar situation were to arise today, the outcome of any such litigation would be different - it may have occurred; I don`t know.  On a personal note however, I knew Sam Otieno and John Khaminwa who represented Mrs Otieno.  They were both nice guys, well liked by everyone. I also knew Justice Nyarangi, who delivered the judgment of the court, both when he was State Counsel and later as a newly appointed judge.  He was unpredictable, and he too was a Luo!

What has this got to do with the big question of the day – who to vote for in the forthcoming election in Kenya?  Well, my simple answer is: if two people from different and often traditionally conflicting backgrounds such as the Otienos or the Lovings could marry, have children and live together into old age, then why can`t the ordinary citizen vote for a candidate irrespective of their ethnicity, colour, religion, class or community?  In elections, what should matter is the candidates` merit, their character, and what they stand for?  After all, Barack Obama did not get elected as US President twice on the strength of his black supporters alone; the majority of his votes came from the wider American electorate. Readers of AwaaZ do not need to be told this; to the public at large, spread the message!

Ramnik Shah©

Last modified on Wednesday, 12 July 2017 16:29
Ramnik Shah

Born in Mombasa, practised law in Nairobi from 1964 to `74 and then for the next 30 years in England, where since retirement he has been engaged in academic research and writing on migration and diaspora related subjects and general literature

Website: ramnikshah.blogspot.com
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