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Notes
* School of Law, University of Warwick, CV4 7AL, UK. An earlier version of this paper was presented at a Law School seminar, Birkbeck College, London in October 2001. I am grateful to Peter Fitzpatrick, Patrick Hanafin, Patrick McAuslan and Anton Schütz for their fruitful suggestions on that occasion. Many thanks also to John Harrington and Tehmeena Manji for discussions and comments on earlier drafts.
1 Daily Nation, 16 May 1987.
2 E. Cotran in J.B. Ojwang and J.N. K. Mugambi eds., The S.M. Otieno Case: Death and Burial in Kenya (Nairobi: Nairobi University Press, 1989)
.3 D.W. Cohen and E.S. Atieno Odhiambo, Burying S.M.: The Politics of Knowledge and the Sociology of Power in Africa (London: James Currey, 1992)
.4 Whilst the study of law and literature is by now well established within the legal academy, almost no attention has been paid to portrayals of law in African literature. Elsewhere, I have attempted to draw on the insights of law and literature in order to make a close reading of Chinua Achebe’s novel Arrow of God. Intrigued by a passing reference by Lewis Nkosi in the London Review of Books to Achebe’s treatment of law, I was inspired to explore the novel for the insights it might provide. In the resulting paper, I argued that Achebe’s fiction prefigured many of the issues engaging critics and theorists on the wider social scientific terrain. Studies of the colonial state by lawyers, political scientists and historians, for example, have neglected African fiction’s long engagement in this area. In the face of long-running debates as to the merits of a law and literature approach, my point of departure was that given the scant attention that had been paid to law in African literature, it would be premature to be discouraged by Posner’s comment that it is a “great false hope” that literary theory will change the way that lawyers think. That exercise was based on what might be described as a traditional understanding of what is entailed in “doing” law and literature. That is, it had at its heart a literary text that was read closely for what it might reveal about law, or the legal world. See A. Manji “‘Like a Mask Dancing’: Law and Colonialism in Chinua Achebe’s Arrow of God,” 27 (4) Journal of Law and Society pp. 626–642 (2000)
.5 T. Eagleton, The Function of Criticism (London: Verso, 1997), p. 124
.6 Id.
7 T. Burns, Erving Goffman (London: Routledge, 1992), p. 109
.8 H. Plessner, “With Different Eyes” in T. Luckman, ed., Phenomenology and Sociology (London: Penguin, 1978), 25–41
.9 Virginia Edith Wambui Otieno v Joash Ochieng Ougo and Omolo Siranga, H.C.C. No 4827 (1986, at Nairobi).
10 E. Cotran “The Future of Customary Law in Kenya” in J.B. Ojwang and J.N.K. Mugambi, eds., The S.M. Otieno Case: Death and Burial in Modern Kenya (Nairobi: Nairobi University Press, 1989), pp. 149–164
.11 For detailed accounts see M.D. Okech-Owiti, “Some Socio-Legal Issues” in J.B. Ojwang and J.N.K. Mugambi, eds., The S.M. Otieno Case: Death and Burial in Modern Kenya (Nairobi: Nairobi University Press, 1989), pp. 11–26
; and also D.W. Cohen and E.S. Atieno Odhiambo, Burying S.M.: The Politics of Knowledge and the Sociology of Power in Africa (London: James Currey, 1992) . For press coverage of the case, see Egan, (ed.) S.M. Otieno: Kenya’s Unique Burial Saga (Nairobi: Nation Newspapers, 1987) .12 Cotran, supra note 10; see also E. Cotran, Casebook on Kenya Customary Law (Nairobi: Professional Books and Nairobi University Press, 1988)
.13 Cole v Cole (1898) 1 N.L.R. 15.
14 See Case No. 88 in E. Cotran, Casebook on Kenya Customary Law (Nairobi: Professional Books and Nairobi University Press, 1988), p. 336
.15 For a discussion of repugnancy clauses, see A. Allott, New Essays in African Law (London: Butterworth, 1970)
; and M. Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (London: James Currey, 1996), pp. 109–137 .16 The existence and purpose of a range of customs were in contention throughout the case. These included the extent to which a widow could participate in the funeral and the custom that a widow must have sex with the brother of the deceased after the funeral.
17 See Case No 88 in E. Cotran Casebook on Kenya Customary Law (Nairobi: Professional Books and Nairobi University Press, 1988), 344
.18 Cotran, supra note 14 at p. 344.
19 E. Cotran “The Future of Customary Law in Kenya” in J.B. Ojwang and J.N.K. Mugambi, (eds.) The S.M. Otieno Case: Death and Burial in Modern Kenya (Nairobi: Nairobi University Press, 1989), 149–164
, 160–161.20 James Apeli v Prisca Buluka 1979. Case No 65 in E. Cotran Casebook on Kenya Customary Law (Nairobi: Professional Books and Nairobi University Press, 1988), 231
.21 Id.
22 Carmelina Ngami Mburu v Mary Nduta, Hellen Omoka and Medical Officer of Health, Nairobi 1981. Case No 66 in E. Cotran, Casebook on Kenya Customary Law (Nairobi: Professional Books and Nairobi University Press, 1988), 237
.23 As Cotran puts it, “can it really be said that if a man has a right to make a written will, as he does now under the statutory law of Kenya and indeed orally under s.9 of the Law of Succession Act 1960, that any wishes he expressed during his lifetime as to the disposal of his own corpse are to be ignored?.” See, Cotran, supra note 20.
24 In contrast, note the comments of Professor Odera Oruka of the Department of Philosophy, University of Nairobi, who was called to give evidence by counsel for the clan. Professor Oruka asserts that a person’s will may be set aside if it violates custom, an approach that was confirmed by the Court of Appeal’s judgement. For a discussion, see A. Quayson, Postcolonialism: Theory, Practice or Process? (Cambridge: Polity Press, 2000)
. The role of academic witnesses in the litigation is elaborated by D.W. Cohen and E.S. Atieno Odhiambo Burying S.M.: The Politics of Knowledge and the Sociology of Power in Africa (London: James Currey, 1992) .25 Burns, supra note 8. We might speculate that Otieno himself would have been familiar with the theatre metaphor from his reading of Shakespeare.
26 H. Plessner, “With Different Eyes” in T. Luckman, ed., Phenomenology and Sociology (London: Penguin, 1978), pp. 25–41
.27 E. Goffman The Presentation of Self in Everyday Life (London: Penguin, 1959)
, preface.28 Id, at 14.
29 Id, at 14–16.
30 A. Giddens, Central Problems in Social Theory: Action, Structure and Contradiction in Social Analysis (Basingstoke: Macmillan, 1979), p. 207
.31 Id, at 80–81.
32 For an account of the bourgeois public sphere in seventeenth and eighteenth century England, see T. Eagleton, The Function of Criticism (London: Verso, 1997)
.33 Giddens, supra note 30.
34 Goffman, supra note 27 at pp. 244–245 (author’s emphasis).
35 Okech-Owiti, supra note 11.
36 Cotran, supra note 19.
37 Cohen and Atieno Odhiambo, supra note 3.
38 Giddens, supra note 30.
39 Cohen and Atieno Odhiambo, supra note 3 at 22.
40 E. Bronfen, Over Her Dead Body: Death, Femininity and the Aesthetic (Manchester: Manchester University Press, 1992), pp. 49–50
.41 J. Rothschild, Ethnopolitics: A Conceptual Framework (New York: Columbia University Press, 1981)
.42 Id, at 5.
43 In 1992 a parliamentary committee also investigated the conflicts: see Government of Kenya, Report of the Parliamentary Select Committee to Investigate Ethnic Clashes in Western and Other Parts of Kenya (Nairobi: Government Printer, 1992)
.44 Cohen and Atieno Odhiambo, supra note 3.
45 Id., at 15.
46 For a writer who has taken this approach see B. Harden, Africa: Dispatches From a Fragile Continent (New York: Norton, 1990), pp. 95–129
.47 Cohen and Atieno Odhiambo, supra note 3 at 86.
48 T. Eagleton, “Introduction,” in T. Eagleton and D. Milne, eds., Marxist Literary Theory (Oxford: Blackwell, 1996), p. 7
.49 Id.
50 Id., at 13.
51 A. Haugerud, The Culture of Politics in Modern Kenya (Cambridge: Cambridge University Press, 1997), p. 17
.52 Id., at 28.
53 Id., at 2–4.
54 Id., at 31.
55 Id., at 17.
56 Id., at 28.
57 Id., at 33. See also K. Barber, “Popular Arts in Africa,” 30(3) African Studies Review pp. 1–78 (1987)
.58 I. Watt, The Rise of the Novel (London: Chatto and Windus, 1957)
.59 Giddens, supra note 30 at 80–81.
60 Eagleton, supra note 5.
61 D. Kiberd, Inventing Ireland: The Literature of the Modern Nation (London: Jonathan Cape, 1995), p. 115
.62 M. Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (London: James Currey, 1996)
.63 Cohen and Atieno Odhiambo, supra note 3 at 28–29.
64 Id., at 28.
65 For an account of the bourgeois public sphere in seventeenth and eighteenth century England, see. Eagleton, supra note 5.
66 Id., at 9.
67 Id., at 15.
68 Id., at 26.
69 Mamdani, supra note 62.
70 Eagleton, supra note 5 at 24.
71 Goffman, supra note 27 at 244.
72 S. Webster Goodwin and E. Bronfen, eds., Death and Representation (Baltimore: John Hopkins University Press, 1993), p. 20
.73 Id.
74 K. Verdery, The Political Lives of Dead Bodies: Reburial and Postsocialist Change (New York: Columbia University Press, 1999), p. 33
.75 Id.
76 Photographs of the court house on the day the final judgement was delivered by the Court of Appeal may be found in Egan, ed., S.M. Otieno: Kenya’s Unique Burial Saga (Nairobi: Nation Newspapers, 1987)
.77 J. Kristeva, Powers of Horror: An Essay on Abjection (New York: Columbia University Press, 1982), p. 71
.78 Cohen and Atieno Odhiambo, supra note 3 at 30.
79 E. Bronfen, Over Her Dead Body: Death, Femininity and the Aesthetic (Manchester: Manchester University Press, 1992), pp. 49–50
.80 E. Hanson “Undead” in D. Fuss, ed., Inside/Out: Lesbian Theories, Gay Theories (London: Routledge, 1991), 324–440
, 324.81 P. Hanafin, “D(en)ying Narratives: Death, Identity and the Body Politic,” in 20(3) Legal Studies pp. 393–408 (2000)
.82 B. Anderson, Imagined Communities: Reflections of the Origin and Spread of Nationalism (New York: Verso, 1991)
.83 Verdery, supra note 74 at 28.
84 Giddens, supra note 30 at 81.
85 Goffman, supra note 27 at 83.
86 Id., at 90–91.
87 Id, at 91.
88 “Whilst the artist … admits, and sometimes draws attention to the contingency and artificiality of her constructions, legal language aims to conceal its artificial origins.” M. Aristodemou, Law and Literature: Journeys From Her to Eternity (Oxford: Oxford University Press, 2000), p. 2
.89 Cohen and Atieno Odhiambo, supra note 3 at 6.
90 Goffman, supra note 27 at 141.
91 For an extended definition see Id, at 141–165.
92 Id, at 105.
93 Id
94 S. Ndegwa “Citizenship and Ethnicity: An Examination of Two Transition Moments in Kenyan Politics,” 91 (3) American Political Science Review pp. 599–616 (1997)
.95 As D.W. Cohen and E.S. Atieno Odhiambo put it, the legal profession in Kenya was “fundamental to the elaboration of both patriarchy and oligarchy in the country,” supra note 3 at 86.
96 Eagleton, supra note 5 at 24.
97 Cohen and Atieno Odhiambo, supra note 3 at 66.
98 Id.
99 Hanafin, supra note 81 at 395.
