Why do African judges still wear wigs?

Weekend Argus (Sunday Edition) - - AFRICA -

NAIROBI: THE Bri­tish gave up their last colonies in Africa half a cen­tury ago. But they left their wigs be­hind.

Not just any wigs. They are the long, white, horse­hair locks worn by high court judges (and King Ge­orge III). They are so old-fash­ioned and so un­com­fort­able even Bri­tish bar­ris­ters have stopped wear­ing them.

But in for­mer Bri­tish colonies – Kenya, Zim­babwe, Ghana, Malawi and others – they live on, worn by judges and lawyers. Now, a new gen­er­a­tion of African jurists is ask­ing: why are the con­ti­nent’s most prom­i­nent le­gal minds still wear­ing the trap­pings of the colonis­ers?

It’s not just a ques­tion of aes­thet­ics. The wigs and robes are per­haps the most glar­ing sym­bol of colo­nial in­her­i­tance at a time when that his­tory is be­ing dredged up in all sorts of ways. This year, Tan­za­nian pres­i­dent John Magu­fuli de­scribed a pro­posed free trade agree­ment with Europe as a “form of colo­nial­ism”. In Zim­babwe, Pres­i­dent Robert Mu­gabe still refers to the Bri­tish as “thiev­ing colo­nial­ists”.

In June, the pre­mier of Cape Town was sus­pended from her party af­ter writ­ing on Twit­ter that colo­nial­ism had made pos­i­tive con­tri­bu­tions.

The relics of colo­nial­ism are scat­tered across the con­ti­nent. There are the queen’s name­sakes: Vic­to­ria Falls north of Zim­babwe, Lake Vic­to­ria east of Uganda, Vic­to­ria Is­land in Nige­ria. There is the left-lane driv­ing, the cricket, the way pub­lic ed­u­ca­tion is or­gan­ised.

Most cities and streets have re­ceived new names since the Euro­peans left. In 2013, Mu­gabe of­fi­cially re­bap­tised Vic­to­ria Falls Mosi Oa Tunya, or “the smoke that thun­ders” in the Kololo lan­guage.

Yet the wig sur­vives, along with other relics of the colo­nial court­room: red robes, white bows, ref­er­ences to judges as “my lord” and “my lady”.

In nearly ev­ery for­mer Bri­tish colony, opin­ion pieces have been writ­ten and speeches made about why the wig ought to be re­moved. In Uganda, the New Vi­sion news­pa­per con­ducted an in­ves­ti­ga­tion into the price of the wigs, re­port­ing that each cost $6 500 (R86 000). In Ghana, a prom­i­nent lawyer, Augustine Niber, ar­gued that re­mov­ing wigs would re­duce the “in­tim­i­da­tion and fear that of­ten char­ac­terise our court­rooms”.

One of the ed­i­tors of the Nige­rian Lawyer blog wrote that wigs weren’t made for the swel­ter­ing La­gos heat, where lawyers melted un­der their garb. “The cul­ture that in­vented wig and gown is dif­fer­ent from our own and the weather is dif­fer­ent,” Unini Chioma wrote.

In­creas­ingly, though, op­po­nents of the colo­nial out­fit aren’t just ar­gu­ing against in­con­ve­nience but against a tra­di­tion that African ju­di­cia­ries ap­pear to be em­brac­ing. Bri­tain’s “colo­nial courts”, which pre­ceded in­de­pen­dence, were some­times bru­tal. In re­sponse to Kenya’s Mau Mau re­bel­lion in the 1950s, for ex­am­ple, the wigged, white judges sen­tenced more than 1 000 peo­ple to death for con­spir­ing against colo­nial rule.

“The colo­nial sys­tem used law as in­stru­ment of re­pres­sion and we’re still main­tain­ing this tra­di­tion with­out ques­tion­ing it,” said Arnold Tsunga, direc­tor of the Africa pro­gramme at the In­ter­na­tional Com­mis­sion of Jurists. “It’s a dis­grace to the mod­ern courts of Africa.”

In Kenya, for­mer chief jus­tice Willy Mu­tunga made a call to re­move the wigs from court­rooms, ar­gu­ing that they were a for­eign im­po­si­tion, not a Kenyan tra­di­tion. He swopped the tra­di­tional Bri­tish red robes for “Kenyanised” green and yel­low ones. He called the wigs “dread­ful”.

But that out­look wasn’t shared by many Kenyan judges and lawyers, who saw the wigs and robes as their own uni­forms, items that el­e­vate a court­room, de­spite – or be­cause of – their colo­nial links.

“It was met with con­ster­na­tion from within the bench and the bar,” said Isaac Okero, pres­i­dent of the Law So­ci­ety of Kenya.

Okero is a de­fender of the wig and the robe and ar­gues they rep­re­sent more than a Bri­tish tra­di­tion, but some­thing that dis­tin­guishes the coun­try’s judges.

“I don’t feel at all that it has any neg­a­tive con­no­ta­tion of colo­nial­ism. It has risen be­yond that. It is a tra­di­tion of the Kenyan bar,” he said.

This year, Kenya’s new chief jus­tice, David Maraga, has in­di­cated he wants to re­vert to the colo­nial tra­di­tions. Dur­ing his swear­ing-in cer­e­mony, he wore a long white wig and the Bri­tish-style red robe. Many Kenyans were per­plexed.

“It was his rather pe­cu­liar out­fit that would send a re­sound­ing mes­sage to Kenyans,” said a broad­caster on KTN, one of the coun­try’s most pop­u­lar news chan­nels. “It’s back to the old days.”

In Zim­babwe, still ruled by ve­he­ment anti-colo­nial­ist Mu­gabe, the wigs are per­haps most mys­ti­fy­ing. Why would a man who stripped white farm­ers of their land, who railed against the name of Vic­to­ria Falls, al­low an ar­chaic ju­di­cial tra­di­tion to re­main in place?

Some an­a­lysts say that the pol­icy re­veals some­thing about Mu­gabe the closet An­glophile, a fan of Dick­ens who once said cricket “civilises peo­ple and cre­ates good gen­tle­men”.

But Tsunga ar­gues that the ra­tio­nale is more in­sid­i­ous.

“We are see­ing post-in­de­pen­dence African states try­ing to main­tain these sym­bols of power and au­thor­ity in the be­lief that it will help en­trench them­selves,” he said.

The curly horse­hair wigs have been used in court since the 1600s, dur­ing the reign of Charles II, when they be­came a sym­bol of the Bri­tish ju­di­cial sys­tem. Some his­to­ri­ans say they were ini­tially pop­u­larised by France’s King Louis XIV, who was try­ing to con­ceal his bald­ing head.

By the 18th cen­tury, they were meant to dis­tin­guish judges and lawyers – and other mem­bers of the up­per crust. En­ter the word “big­wig” into the lex­i­con.

Other coun­tries in the Bri­tish Com­mon­wealth, such as Aus­tralia and Canada, also in­her­ited the wigs and robes but have moved to­ward re­mov­ing them from court­rooms. An Aus­tralian chief jus­tice last year de­manded that bar­ris­ters re­move their wigs be­fore ad­dress­ing her.

“The abo­li­tion of wigs is all part of the pro­gres­sion to­wards a mod­ern way,” said the chief jus­tice, Mar­i­lyn War­ren.

This year in Bri­tain, the House of Com­mons lifted the re­quire­ment that clerks, who are ex­perts in par­lia­men­tary law, wear wigs. John Ber­cow, the speaker, said the change would pro­mote a “marginally less stuffy and for­bid­ding im­age of this cham­ber”.

But aside from the wigs, African courts have adapted to a post-colo­nial con­text. New con­sti­tu­tions have been writ­ten. A new gen­er­a­tion of judges has emerged. Even though some ju­di­cia­ries have bent to po­lit­i­cal pres­sure, new le­gal sys­tems are rooted in Bri­tish com­mon law but shaped by the tra­di­tions and cul­tures of their own coun­tries.

In Kenya this month, the Supreme Court an­nulled the re­cent pres­i­den­tial elec­tion, a bold dis­play of ju­di­cial in­de­pen­dence that in­fu­ri­ated the sit­ting pres­i­dent.

In the Nairobi court­room where the rul­ing was de­liv­ered, sev­eral lawyers wore their pow­dered wigs. Be­hind the bench, a row of men and women in red robes presided.

Maraga sat down be­fore speak­ing, the sleeves of his black robe hang­ing over the bench.

“The great­ness of a na­tion lies in its fi­delity to its con­sti­tu­tion,” he said, “and a strict ad­her­ence to the rule of law.” – Wash­ing­ton Post

A Malaw­ian judge wears his wig.

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