In Summary
  • The change of guard at the Judiciary allows us to look back at this man, whose 27th anniversary of his death was quietly celebrated two weeks ago, and for a simple reason: everything that could have gone wrong at the judiciary went wrong during his tenure.
  • Justice Cecil Miller came into the national limelight in 1982 when he was appointed chairman of the Judicial commission appointed to inquire into allegations against former Attorney-General Charles Njonjo.

When the history of the Judiciary in Kenya is finally written, the story of Justice Cecil Ethelwood Miller will certainly not have a happy ending.

If one man emasculated the judicial system and held it tight for the executive to do the same — Justice Miller was in a class of his own.

The change of guard at the Judiciary allows us to look back at this man, whose 27th anniversary of his death was quietly celebrated two weeks ago, and for a simple reason — everything that could have gone wrong at the judiciary went wrong during his tenure.

Justice Miller came to the national limelight in 1982 when he was appointed the chairman of the Judicial Commission appointed to inquire into allegations against former Attorney-General Charles Njonjo.

Miller had come into office to replace Justice CB Madan, a man still regarded as the best chief justice in Kenya.

Madan was more than a CJ – he was a poet, politician and a brilliant legal mind. Miller was the opposite.

Miller entered into office in 1986 at a time when Moi was gearing up to crack down on dissidents opposed to his rule. In his June 1, 1986 speech, Moi had described his opponents as a “threat to national security” and warned that he won’t brook any opposition. That November, he appointed Miller the new chief justice.

LANDMARK ERROR

One of the landmark errors was that he allowed the Bill of Rights to be suspended, technically leaving Moi’s critics without recourse to their constitutional rights. Torture had become the main method to extract confessions at the High Court where Prosecutor Bernard Chunga (later Chief Justice) would haul scared and petrified activists into the courts after hours after passing through a notorious interrogator, James Opiyo, at Nyayo House. The team that carried out these interrogations and torture was trained by ex-Vietnam CIA agents, assisting the Special Branch on how to extract information, according to insiders.

It was this system that Miller was supposed to give a legal backing to by standing midpoint between Kanu-era thuggery and an intimidated judiciary.

At this time, a huge chunk of the salaries of the upper echelons of the judiciary was being paid by the British Government — in a system that was supposed to maintain the independence of the judiciary but had turned the well-paid judges into purveyors of judicial dishonesty. Since their contracts depended on the goodwill of the appointing authority — President Moi — loyalty came before fairness. Again, Moi was a close friend of British Prime Minister Margaret Thatcher whose government bankrolled the judiciary. That is why protests by Law Society of Kenya addressed to UK Home Secretary Douglas Hurd (now Lord Hurd of Westwell) to cut aid to the judiciary failed and he was dismissed by Gitobu Imanyara as “being too timid to say the same things about democracy and human rights in Kenya as he did in Russia, China and South Africa”.

AUTHORITARIAN SYSTEM

With that, Justice Miller, a former British Air Force pilot during World War II, could only sit to legitimise an authoritarian system that presided over corruption and nepotism.

Before he came to that office, Miller had been allowed to amass wealth using his office as chairman of the Law Reform Commission.

The zeal with which he hunted for beach plots and properties is contained in secret letters that he wrote to then Coast Provincial Commissioners Lucas Daudi Galgalo and later Yusuf Haji.

In one of the letters, dated December 1985, addressed to SM Komu, District Commissioner Kilifi, and stamped personal and confidential, Justice Miller was interested in having beach plots in Bofa, Kilifi, regarded as one of the best beaches in Kenya.

In the letter, he writes: “Regarding first row plots at Bofa, please let me know if Plot Numbers 11 to 25 are still vacant and their sizes. Please also, indicate what is the approximate price per acre … In regard to Malindi plots, I understand the same are near or next to the Golf Course, please confirm if this is the case, confirming plot numbers”.

Justice Miller would also nudge the provincial administration to get him a residential plot at the coast as he did in February 1985. He had initially approached PC Galgalo who would hand over the matter to his successor Haji with a letter. He told Haji that Justice Miller wanted “a small residential plot for himself … obviously, Justice Miller is a distinguished personality well known to all of us, whose case appears genuine and most deserving … help him as much as possible.”

VACANT PLOTS

The DC Kilifi would later confirm to Mr Haji that there were vacant plots available at Bofa Kilifi. “I suggest you ask Justice Miller (to come) so we can show him the plots to enable him decide which plots he can apply for.”

In yet another letter dated April 18, 1985, the DC tells Haji that he has managed to get “more vacant residential plots for which Hon Justice Miller can be considered … it is wise for Justice Miller to go to the proposed site to select a suitable plot or plots to his standard.”

Haji told him that he would also get some plots in Malindi and “after you have done your selection, the necessary action to get one of them allocated to you will be initiated from this side.”

That is the man who would months later be the Chief Justice.

Born in Guyana, Miller was for years the only black face at the Court of Appeal — and the first black judge in Kenya. There is a famous picture of him being bestowed with an Elder of the Order of Burning Spear (EBS) by President Kenyatta. Once he got into the office of the Chief Justice, he took upon his duty to be the defender of the Moi government.

KANU’S PARANOIA

The year 1987 was the height of Kanu’s paranoia. At one point, police arrested two US activists — Chicago pathologist Dr Robert Kirschner and retired Judge Marvin Frankel, the chairman of the Board of Directors of the New York-based Lawyers Committee for Human Rights. The two had come to hear an inquest into the death of a former rally driver, Peter Njenga Karanja, while in police custody.

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