James Boro Karugu – A man committed to the rule of law

Deputy Public Prosecutor James Boro Karugu was a long-serving and loyal senior officer in the Attorney General’s chambers. He was the first choice of his long-serving boss, Charles Mugane Njonjo, to succeed him once he left office to enter politics and become the Member of Parliament for Kikuyu. Njonjo did not have the powers to appoint, but as one of the most influential members of Moi’s kitchen cabinet and the immediate former holder of the office, it is most likely that Moi appointed Karugu on Njonjo’s advice. In Karugu, Njonjo saw a man he had mentored through the ranks, a member of his ethnic community and a village-mate who he could easily use to further his agenda. However, Karugu was an ethical professional who would not be pushed around.

Karugu’s brief sojourn at the AG’s chambers would be marked by three main events: A ‘shoot to kill’ order decreed by his predecessor, the Frank Sundstrom murder case and the Andrew Muthemba treason case.

Njonjo, a man who had enjoyed immense power in his years as AG, left Karugu, one of his ‘home boys’ (both came from Kiambu, and specifically Kabete), in a dilemma. Njonjo had just instructed the police to shoot violent robbers on sight, a directive that was vehemently opposed by some legislators who wanted to know how such an order would be carried out without trigger-happy police killing innocent Kenyans.

Instead of clarifying the matter, Njonjo just dropped it in Karugu’s lap when he left office. But Karugu, a professional and ethical lawyer, neither rescinded nor endorsed the order. He instead issued a ministerial statement in Parliament cautioning against “the use of firearms by trigger-happy policemen”. In the same statement, however, he defended the right of policemen to resort to the use of “such force as is necessary to apprehend a criminal or prevent the commission of crime”.

This statement watered down Njonjo’s ‘shoot to kill’ order and made Karugu the darling of MPs who had thought the order was outrageous. The public was also wary of the extrajudicial actions of a trigger-happy police force under the pretext of following such orders.

As AG, Njonjo was in no particular hurry to replace the white bench with a black bench. During his tenure that ran for three decades from independence to 1980, the High Court, as well as the Court of Appeal, were mainly the preserve of Europeans judges. It was before one such judge that an American sailor, Frank Joseph Sundstrom, was arraigned following the brutal murder of an African girl named Monica Njeri in Mombasa in 1980.

The case raised a hue and cry and drew a lot of publicity locally and abroad. Kenyans demanded justice for the girl and hoped for the American’s execution, or at least a life sentence. On the other hand, ‘Big Brother’ (the United States government) exacted pressure on Kenya to release its citizen, the shocking murder notwithstanding.

Sundstrom had arrived in Kenya on 3 August 1980 aboard a US naval ship and hours later was at the Florida Night Club in Mombasa having drinks with a group of friends. The marines were taking some days off from a tour of duty at sea. Not long after, he befriended one of the girls in the club and the two agreed to leave together and have a good time at the nearby Florida House. Soon they were back and Sundstrom continued partying with his friends. It is at this point that he noticed Njeri, a friend of the previous girl, and after getting acquainted, the two retired to her flat in Ganjoni.

The couple engaged in sexual relations and it is said Njeri got tired at some point and wanted to go to sleep, but the marine would have none of this. In protest, he hit her with one of the beer bottles he had carried with him from the club and it broke on her body. He then used the broken piece to slash her several times until she was dead. This was the background to the murder case before Justice Leslie Harris, a charge he later downgraded to manslaughter.

The wheels of justice turned very fast for the American. One short month later, on 30 September 1980, Kenyans would be most dismayed when Justice Harris seemingly patted Sundstrom on the back by handing him the incredulous penalty of signing a bond promising to pay KES 500 “if he failed to maintain good behaviour in the next two years”. With those words from the honourable judge, the 19-year-old marine was free to go.

Many Kenyans saw a white judge straight from the ‘Wild West’ applauding his younger brother for skinning a Negro. Among these was Attorney General James Karugu.

In those days, criticising the Judiciary or its officers, especially judges, was unheard of; but this did not stop Karugu. He censured Harris on this sentence that was an obvious perversion of justice.

When the matter went to Parliament, MP Kimani wa Nyoike asked the AG whether he was satisfied that justice had been done or/and seen to be done in the Sundstrom case. Karugu said he was not satisfied on both counts. Admitting that the matter had given him some anxious moments, the AG however added, “… perhaps this is the price we have to pay for the independence of the Judiciary”.

Probed further, Karugu said, “Let me assure the House – and I do this with all the sincerity I can command – that if I had any alternative, I would have appealed this case to a higher court.” Unfortunately, by that time, Parliament was yet to amend Section 379 of the Criminal Procedure Code which would have allowed the AG to appeal such a case in the Court of Appeal. “I am legally impotent to do anything as far as this case is concerned,” he said.

But by the time MPs were clamouring for the AG to bring a Bill that would enable him to appeal the Sundstrom case and other such cases, the American had already paid the fine and flown back to his country. The white bench was clearly outraged by Karugu’s sterling performance in Parliament; he had shown that he was his own man and was committed to maintaining the rule of law.

Earlier in the year, Njonjo’s cousin, Andrew Mungai Muthemba, had been charged with treason. Muthemba was accused with another person of intending to depose President Daniel arap Moi. The case was being prosecuted by the AG’s office under Karugu and some of the prosecution evidence seemingly implicated Njonjo.

Appearing as a witness for the defence, Njonjo, then the Minister for Constitutional Affairs, questioned the motive of the police who supplied the evidence and, by implication, the Attorney General. When judgement was finally delivered, the court said the prosecution investigations had been rushed and unprofessional. It also noted that Njonjo’s reputation had been unfairly challenged. Additionally, a local daily wrote a strongly-worded editorial questioning the motives and competence of the AG in the Muthemba case. This put Karugu in the bad books of his former boss.

While it was not explicitly stated that Karugu was being used as a political tool to bring down Njonjo, by then it was clear that Moi and his other confidants were wary of Njonjo and his motives. So this could very well have been one of those instances where Moi used one government official to fix another, knowingly or otherwise. The conclusion was left to the public, but it could also be that Karugu was shaking off Njonjo’s shadow and asserting himself. Either way, the ruling indicated that the Judiciary, which Njonjo had controlled for a long time, was still sympathetic towards him.

In those days the ruling party, KANU, was ‘baba na mama’ (father and mother, to mean all-powerful) and whatever its bigwigs said, however absurd, became law. So when reporters and editors of one local daily were picked up after the daily published a story suggesting that the author of a KANU press statement on an ongoing doctors’ strike was anonymous, the State expected them to be duly charged. The newsmen spent the weekend in police cells but the police prosecutors were unable to craft a suitable charge.

Karugu was an ethical professional who would not be pushed around

On Monday, they turned to the AG for assistance, but Karugu told them he did not know of any law under which the journalists could be charged. This led to the release of the newsmen, who had been unlawfully held for more than 48 hours according to the constitution. In the upper echelons of KANU, some people were very bitter with the AG as a result.

These acts, perceived as defiance, sealed the fate of the AG as a marked man and after 15 months on the job, Karugu abruptly resigned. President Moi accepted his resignation and appointed Joseph Kamere, the first Attorney General from the private sector, to replace him. Karugu, who quit quietly, did not issue a statement about his resignation. Retreating to his Kiamara Coffee Estate near Kiambu Town, he went down in Kenyan history as the shortest-serving Attorney General.

He did, however, manage to contribute to Kenya’s legal map. It was during his tenure as AG that the Land Control Act was introduced. The Act mandated elders to handle rural land disputes. He also introduced the Civil Procedure Act concerning the re-hearing of civil appeals. Also under Karugu’s watch the manufacture, supply and selling of chang’aa was banned.

Karugu was born in 1937 in Chura Village in Kabete, just a few kilometres from Njonjo’s home village of Mararo. He attended Mang’u High School before joining Ohio State University in the USA between 1958 and 1962 to study history and political science. He qualified as a barrister-at-law after graduating with a BA degree from Lincoln’s Inn London in 1964.

Once back in Kenya, he started working at the Attorney General’s chambers where he was promoted to Senior State Counsel in 1967. He replaced expatriate John Hobbs as Deputy Director of Prosecutions in 1970.

Many years later Karugu, who had avoided the media for decades, would tell a reporter from a local daily how he got into the law profession. His father had sold their small piece of land in Chura to send him to the US to fulfil the dream of becoming an academician of repute like others who had gone before him. One of these senior academicians advised him to take up studies in law after graduating in political science.

“As a student, I diligently followed the Kapenguria trial of Jomo Kenyatta and five others and I came to admire the likes of D.N. Pritt and A.R. Kapila who I later worked with,” he revealed.  It was the advice of scholars and the drama of the Kapenguria trial that convinced Karugu about becoming a lawyer.


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