….If we are to protect the community, and then we must not let fanciful possibilities deflect the course of justice…. (Denning, J. Miller v Minister for Pensions)
His Lordship peered down his thick rimmed glasses at the young blustering lawyer. In his twenty years as a judge of the High Court, he had watched all sorts come and go- just fresh out of law schools and tying to impress by lecturing the court on Law. He admired their belief in the supremacy of the law and the optimism with which they rushed their clients under its protective wings. It was naïve really, as they soon realized. It was not enough to be on the right side of the Law. You needed to be on the right side of the Judge. The slip twixt the cup and lip in the process could be cured by generosity. The young Lawyers belief graduated into bitter realism and finally to resignation to the ills of the system.
And at that point his lordship Senyonga was always a disappointed man. He would have preferred them to stick to it and try to reform the system as he had done. He was a Christian reverend and believed that the Law was vox populi vox dei. It was a favorable topic of his – infact seven out of ten of his sermons treated this subject, sometimes so painstakingly that it soared into the realms subtle mysticisms. Being well intentioned the system was infallible, the Law sound. Let every man be subject to the Law, and if found wanting be accordingly punished. It is the voice of God, never mind the corrupt prophet. He would do his best to speak the voice of God with a sure voice, and woe betide thee if it spoke against you.
Now take for instance this young Lawyer, here, about twenty five years old, attempting to lecture the court and going off on a tangent in the process…
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The fact was that four friends had been out on a moonlit night on a fishing trip, many miles out in the waters. Save for a slight swish as the oars swept back the waters and the crocodiles whose eyes glittered in the soft moonlight keeping up with the boat, there was no other sound. The crocodiles always dogged boats whose occupants frequently threw fish into the water as a form of sacrifice
Waiswa, one of the four friends had for some time suspected his colleague Wandera of maintaining an amorous relationship with his wife who he had recently discovered was pregnant. He was disgruntled and embittered as his many efforts to ensnare them in a compromising situation had borne no fruit. All he had to go on were rumours. Consequently the normally cheerful Waiswa of late maintained a sullen silence. Sudden bursts of ill-temper and a malevolent glare with which he constantly favoured Wandera.
Wandera on the other hand was aware of his friend’s ill-feelings towards him. True, he had had an affair with beautiful Teresa, but for heaven sake did not think himself responsible for the pregnancy. To tick off her many lovers one needed more than one hand. In any case the relationship had come to an abrupt end about four months ago. But that was not the only thing on his mind.
‘I hear,’ Wandera began tentatively, letting the statement hang like a piece of thread in the silence.
‘I hear Teresa is pregnant.’ Behind him Waiswa momentarily paused his rowing, gripping his lower lip in his teeth. It was a notorious rumour and the other two shifted uneasily. A boat in the middle of the lake with the crocodiles keeping company is not the best place to start a fight, but Waiswa ploughed on feigning oblivion of the fact.
‘I could swear the baby is not yours, it’s a pity how some people turn out…’
‘Will you shut up?’ Growled Wanjala between clenched teeth. He was reputed to be a no nonsense man, and at his intervention Wandera fell silent.
They rowed on in silence for another hour. Overhead the moon trailed and took refuge behind a cloud. Suddenly, behind him Wanjala heard a scuffle and turned round to see Wandera drop into the water with a splash, Waiswa standing over him. Wanjala asked him what had happened. The only reply was a blood curdling scream from the lake as the crocodile moved in for the kill and the only words they heard from Waiswa till he was arrested eight years later;
‘Let him die. It serves the fool right.’
They searched the whole night to no avail, save for the blood stained clothes found floating on the water. Waiswa disappeared the moment they touched shore and was arrested eight years later.
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‘My Lord, the prosecution has adduced evidence and failed to satisfy Court on two most important ingredients; that the deceased person is dead and that the accused person caused his death.’ The young blustering lawyer went on and on, unaware that the judge had long put down his pen. Even the prosecutor’s gently mocking smile was lost on him.
On and on went he, belabouring Court on the accused person’s innocence and the burden and standard of proof, extensively quoting both statute and case law till the good judge was obliged to cut in;
‘With due respect Counsel; don’t lecture the Court on law. We are sufficiently acquainted with it.’
And that is when he noticed it all, that only he carried the belief of the accused’s innocence, and that most probably he was going to hang. Waiswa was innocent, he had not pushed Wandera into the lake. But the people who had been in the boat had testified against him, even though they bore him no ill will. Counsel dropped his hands to his side and said;
‘At least think of the fact that the body was never found. The person could be alive somewhere…,’ the prosecutor laughed appreciatively as if it was a good joke. Not even the Counsel believed himself.
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In his summing up the judge noted:
…I would wholeheartedly wish to believe in the innocence of the accused person,
But I can’t. The evidence against him is overwhelming….Regarding the defence
Counsel’s invitation to imagine the deceased person alive, it is nothing more than
That, an imagination, a fanciful possibility…we have seen the bloodstained
Clothes, heard his companions…of the malice he bore toward the deceased and
the attack on him an entire hour after the deceased had ceased his taunting…
It is more probable than not that the accused person is guilty of the murder of
Wandera Emmanuel.
Waiswa was found guilty and accordingly sentenced to hang. He was led out of court staring before him stoically, his lower lip trembling imperceptibly. In due course the mistake of Law was hoisted six feet above the ground.
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The day after the hanging while taking an afternoon nap, Wanjala’s fifteen year old son rushed up to him, looking like he had seen the devil himself. He dragged his father to the door and pointed at the gate, still stupefied. There was nothing there, except for a new TOYOTA RAV4 coming to a halt. The door opened and a crutch preceded followed by Wandera Emmanuel, whose murderer had hanged the previous day.
Wanjala’s jaw sagged, and his eyes nearly bobbed out of their sockets, he tried to swallow but came up against the bulk of his tongue. When he eventually found his voice he let out a scream heard for a mile around that brought the entire village to his compound, by which time he had barricaded himself in and could not be convinced to stir a foot outside.
The story came out, well a bit of it, for when he knew what had transpired he could not divulge everything. He had jumped into the lake, he had not been pushed, there had been no fight, he had swum to safety with the aid of a jerry can hidden on the boat and nobody had seen.
The reason for this was that a few days before a cousin of his had stolen a huge sum of money and kept it with him. Being unscrupulous he had exploited the bad blood between him and Waiswa to fake his death and cheat the cousin of his money. He had only come back when he got word of the cousin’s death.
The newspaper got wind of the story and ran it under the headline:
DECEASED PERSON OUTLIVES MURDERER
His Lordship read it and spent the whole morning in an agitated state of mind. He went home to his study at noon. The next day the newspaper ran another story under the headline:
THE LORD OF FANCIFUL POSSIBILITIES SHOOTS HIMSELF
