The Gallant Academic Essays in Honour of Hwo Okoth-Ogendo
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International Environmental Law Research Centre THE GALLANT ACADEMIC ESSAYS IN HONOUR OF HWO OKOTH-OGENDO Patricia Kameri-Mbote & Collins Odote (eds) Published by: School of Law - University of Nairobi (2017) This paper can be downloaded in PDF format from IELRC’s website at http://www.ielrc.org/content/b1702.pdf International Environmental Law Research Centre [email protected] www.ielrc.org [Date]d The Gallant Academic Essays in Honour of HWO Okoth-Ogendo Patricia Kameri-Mbote & Collins Odote (eds) Published by School of Law - University of Nairobi ©2017 Patricia Kameri-Mbote and Collins Odote in editorial matter, and the authors Layout, designed & Printed by Digital Process Works Cover design by Ecomedia ©2017 Patricia Kameri-Mbote and Collins Odote in editorial matter, and the authors ISBN 978-9966-1952-0-3 TABLE OF CONTENTS Preface ............................................................................................................................vii Contributors ...................................................................................................................xi Acknowledgements .......................................................................................................xix Abbreviations ................................................................................................................xxi CHAPTER 1: Introduction, Patricia Kameri-Mbote & Collins Odote ....................... 1 PART I: OKOTH THE PERSON CHAPTER 2 Okoth-Ogendo: The Man, Ruth Adhiambo Okoth-Ogendo ............... 9 CHAPTER 3 HWO Okoth-Ogendo: A Personification of Excellence, PLO Lumumba ................................................................................. 21 CHAPTER 4 My Memories of Hastings Wilfred Opinya Okoth-Ogendo from 1968 to 1982, Willy Mutunga .................................................. 25 CHAPTER 5 Okoth-Ogendo The Academic, Jackton B. Ojwang ........................... 35 CHAPTER 6 Okoth-Ogendo’s Style: Discerning the Guru’s Voice in a Scholarly Text, Okoth Okombo .................................................. 47 PART II: OKOTH’S CONTRIBUTION TO LAND TENURE FOUNDATIONAL DISCOURSES CHAPTER 7 In Search of Thematic Unity in Land Law: Tenure Security, Gamaliel Mgongo Fimbo .................................................................. 57 CHAPTER 8 Beyond Private Ownership: Alternative Paradigms for Rural and Urban Tenure Reform in Post-Apartheid South Africa, Ben Cousins ...................................................................................... 79 iii iv TABLE OF CONTENTS CHAPTER 9 The Fate of Res Communis in Africa: Unfinished Business, Liz Alden Wily ................................................................................ 103 CHAPTER 10 The Conundrum of Institutional Arrangements to Govern Community Land in Kenya, Collins Odote .................................... 119 PART III: OKOTH’S CONTRIBUTION TO GOVERNANCE DISCOURSES CHAPTER 11 Constitutionalism: African Perspectives, Yash Ghai ......................... 149 CHAPTER 12 The Role of Civil Society in Land Reforms in Kenya: The Kenya Land Alliance, Odenda Lumumba ................................. 171 CHAPTER 13 Demystifying the Politics of Land Tenure: Okoth-Ogendo and the Concept of land in Africa, Karuti Kanyinga .............................................................................. 185 CHAPTER 14 Okoth the Dream Keeper: Breaking down the boundaries of law, Wanjiku Mukabi Kabira & Nkatha Kabira ...................................... 205 PART IV: OKOTH IN LAND AND GENDER DISCOURSES CHAPTER 15 The more things change the more they stay constant: Okoth’s contribution to gender equality and non-discrimination in land matters, Patricia Kameri-Mbote ............ 223 TABLE OF CONTENTS v CHAPTER 16 Gendered land questions and the marginalization of Maasai women, Agnes K. Meroka ...................... 243 Part V – LAND USE CHAPTER 17 Land tenure and use among indigenous communities in Kenya: Trade-off with climate change mitigation strategies, Elvin Nyukuri . 265 CHAPTER 18 Developments in environmental governance in Kenya: Experiences using the Owino-Uhuru case, Charles Odidi-Okidi & Collins Odote ............................................ 277 PART VI – FINAL MATTERS: OKOTH’S CURRICULUM VITAE AND SELECT PEOPLE’S MEMORIES OF HIM Curriculum vitae .......................................................................................................... 297 Poem: The Dancing Maniac, H.W. Okoth-Ogendo ..................................................... 315 Select messages of condolences ..................................................................................... 317 Bibliography ................................................................................................................. 337 Annex........................................................................................................................... 367 PREFACE I first met Professor Okoth Ogendo sometime in September 1980, upon reporting to the faculty of law of the University of Nairobi, as a first year student. At that time, the faculty of law, later renamed the School of Law of the University of Nairobi, was located on the third floor of the Gandhi Wing of the university. This Wing housed both the junior com- mon room or cafeteria, and the senior common room. It also bordered the Department of Economics. On this initial sighting, Okoth (whom I never called his first name throughout his life, only referring to him as ‘Guru’ or ‘Prof’) was wearing one of his much-loved Kaunda suits, which, if my memory serves me right, was a colourful yellow. He was walking down the corridor on the third floor, heading, I believe, to the senior common room. What stayed with me on that day, as well as many of us over the years, was how confident Okoth was, re- flected even in his demeanour. One was left in no doubt that he belonged in these corridors that I so much wanted to belong to. Okoth had just been elected acting dean of the faculty of law, not long before the initial encounter I had with him, in very unprecedented circumstances that are narrated by Willy Mutunga in chapter 4 of this book. When classes started a week or so later, Okoth came to teach a course then called Legal Methods and Systems. It was an introductory course to law, legal systems, legal theory and legal reasoning. Ordinarily, it was not the kind of course that would be taught by a senior academic, leave alone the dean. To a class full of 20 year olds, Okoth was both a terror and an absolute delight, challenging the unprepared and enjoying mental gymnastics with the prepared. Then, the law lectures were held in a theatre named ‘Science 2’. It had once been a ge- ology lecture room when the university was known as the Royal Technical College. Okoth, who stood no more than 5feet 6inches tall, dominated the room with the sheer size of his intellectual presence: questioning, prodding, berating and encouraging, all at once. He loved teaching and it was obvious. He loved students and he demonstrated it. He loved the university, not as an ivory tower but as a community of scholars, young and old generating knowledge and preparing future leaders. After a lifetime in the legal academy, I cannot recall a teacher who left such a deep intellectual inspiration on every serious student. For my part, I would never have considered a career in the academy of law had I not met Okoth, assisted in part by Willy Mutunga and George Okoth Obbo who was a Ugandan graduate student within the faculty of law at the time. He transmitted to me a deep and abiding love of the law and I was really privileged to be taught by him. At one time, after he and I had been staring at one another in class for weeks, he came to class and while looking directly at me, declared in front of the entire class: “I was told that you are the resident class Marxist”. I was stunned but managed to say, “Not vii viii PREFACE the only one sir!” During this period, the majority of students held broadly left leaning views but were not in any sense Marxist. Our banter continued for the rest of his life. Later, I had yet another great opportunity, as did my classmates, to be taught by Okoth. This time it was Land Law, in the second year of my undergraduate studies.1 While many legal academics never become masters of the black letter law, many choosing to theo- rise around legal ideas in their chosen field, in the area of land law, Okoth was a guru, with- out any equal. His command of the black letter in land law was very impressive. He rivalled JB Kangwana who took tutorials in the area and who was a practising advocate. Okoth nonetheless greatly enjoyed the Latin phrases that informed most of the basic concepts of English land law as has been discussed by PLO Lumumba else where in this book. In my third year of law school, Okoth came back, alongside Oki Ombaka who had recently returned from studies at Harvard University, to teach, Jurisprudence; which became the darling subject of my academic life and which I taught to several generations of law students later. Okoth the legal philosopher was a complete delight to listen to. He could juggle several ideas at the same time without losing his train of thought. In my first years of teaching, I remember sitting in his LLM jurisprudence seminar with Michael Ochieng and PLO Lumumba and continuing to learn from the Guru how to conduct a seminar. Okoth must have formed a favourable view of my abilities, because during one of the vacations, he commissioned me to do some research relating