² Jomo Kenyatta, Facing Mount Kenya, Seeker & Warburg, London (4th impression (paperback), 1968), 223. The Kikuyu traditional oaths are also discussed in Leakey, L. S. B., Mau Mau and the Kikuyu, Methuen & Co. Ltd., London, 1952, 51–55. As to the continuance of traditional oathing in civil cases, see infra, at pp. 27et seq.Google Scholar

³ Kenyatta, op. cit., 225.

^{page 18 note 1} The term Mau Mau is used throughout this article. Many Africans object to the use of the term; see, for example, Kariuki, J. M., Mau, Mau Detainee, Oxford University Press, Nairobi, 1963, 31–32, where the author states that the oath of unity (ndemwa ithatu) was “given the mysterious and sinister name of ‘Mau Mau’ by a cunning propaganda machine”. The term is, however, now generally accepted when referring to the movement itself (note the author’s title), although former members are referred to as “Freedom Fighters”.Google Scholar

^{page 18 note 2} Kariuki, op. cit., 25–33. The basic oaths are set forth in full, together with a description of the rites of administration. As to the reports of more disgusting and vile oaths administered, the author states that “they must have been confined to a minute number of perverted individuals driven crazy by their isolation in the forests”. Not all authorities agree. Leakey, for example (op. cit. 55), says that “as the movement grew from its small beginning, it violated more and more the rules governing oath taking and so grew into something which was wholly contrary to established native law and custom”. The Cor field Report (n. 4, infra) at p. 167 states: “As the terms of the Mau Mau oath became increasingly more violent and bloodthirsty, it was not surprising therefore that there was a corresponding increase in bestiality in the ritual of the oath, thus forcing the initiate to reach the necessary pitch of blood lust and degradation to make it possible for him to pronounce the ghastly words of the oath itself.” In this article, the central point is not the variation in oath-administration procedures, but the reorientation of the purposes of the traditional oath towards the entirely new aim of the attainment of a political purpose.

^{page 18 note 3} Kariuki, op. cit., 28–31.

^{page 18 note 4} The Origins and Growth of Mau Mau: An Historical Survey, Sessional Paper 5 1959/1960, Kenya Legislative Council.

^{page 19 note 1} The author was physically present in Kenya during the entire series of events listed. The sequence is taken from reports in the East African Standard and the Daily Nation published during the period except where otherwise noted.

July 5, T. J. Mboya, M.P., Minister for Economic Development and Planning assassinated in Nairobi. July 8, rioting at Requiem Mass, cars stoned. July 8, Mboya’s body taken to Kisumu. July 10, six charged with stone-throwing at Mass. July 11, burial. First indications that suspect located, gun examined. July 15, President addresses nation saying death must not destroy unity. July 21, Nahashon Isaac Njenga Njorege charged with Mboya murder. July 22, Vice-President gives “final warning” to rumour-mongers circulating stories about the assassination. July 29, Second Reading of National Assembly and Presidential Election Bill in National Assembly. Aug. 1, Kenya Peoples’ Union (K.P.U.) Vice-President and Administrative Secretary leave to rejoin Kenya African National Union, majority party (KANU). Aug. 5, thirteen killed in crash of lorries near Thika. Aug. 11, preliminary inquiry on Mboya assassination case begins. Aug. 12, KPU M.P. makes allegation in National Assembly of oathing at President’s farm at Gatundu near Thika involving Wakikuyu travelling in lorries marked KANU Private. Oaths alleged to be that they would hate other tribes, particularly Luo from Nyanza (see Hansard, 12th August 1969, col. 3146–3172). Allegations were refuted by Vice-President and Minister of Home Affairs. Aug. 15, Director of Information accuses press of distortion, exaggerating facts and dramatising in reports of oathing. Aug. 17, President renews call for end of tribalism. Aug. 18, Njenga committed for trial. Aug. 19, M.P.s defend Kenya press in National Assembly. Sept. 1, Njenga trial opens. Sept. 7, 200 sign covenant against secret oaths at Nairobi Baptist Church. Sept. 8, Anglicans come out against oathing. Sept. 10, Njenga convicted and sentenced to death. Sept. 13, secret oathings condemned by Assistant Minister for Education; Catholic Bishops condemn oathing. Sept. 16, Minister for Education says he would draw attention of Ministry officials to allegations of oathing in schools. Sept. 18, press conference by Assistant Minister for Education with specific allegations of oathing incidents and “terror” in Ukambani. Sept. 19, on President’s direction, Vice-President issues stern warning against illegal oaths and orders police to investigate all allegations of forcible oathing with view to prosecution. Sept. 20, widow of Presbyterian church minister, herself severely injured, tells of fatal beating by oathing gang in Kikuyu area. Sept. 22, leader from Embu refute Asst. Minister for Education’s allegations. Sept. 23, three in Nakuru charged in court with oathing riot. Sept. 25, Asst. Minister for Education claims life threatened for stand against oathing. Sept. 26, three Nairobi journalists deported, allegedly for having “made too much” of Asst. Minister’s press conference, although both newspapers involved “cut out all possible inflammatory remarks made by him”. Oct. 2, private question in Parliament concerning action against illegal oathing (Hansard, 2nd October, 1969, col. 160–162). Oct. 10, Luo elders call on President, who refuted allegations in memorandum presented concerning discrimination on tribal grounds in civil service, police, statutory bodies and national business organizations. Oct. 13, Njenga’s appeal dismissed by East African Court of Appeal. Oct. 20, outbreaks of violence on Kenyatta Day. Oct. 23, Vice-President warns rumour-mongers “sabotaging” stability and good order; Attorney-General warns in National Assembly that “there is something sinister happening in this country”. Oct. 26, violence following presidential speech in Kisumu, stoning, at least seven killed when shots fired by bodyguard during attack on presidential car; Kisumu placed under curfew. Oct. 27, KPU leaders rounded up and detained. Oct. 28, KPU accused by Vice-President of being behind rioting. Oct. 30, KPU banned. Nov. 7, Parliament dissolved. Nov. 11, election dates announced. Thereafter campaigning begins, many seek nomination under KANU label.

^{page 20 note 1} No cases involving prosecution for oathing during recent months have been brought to the author’s attention, nor, to the best of his knowledge, have any reports been made via newspapers, which normally cover judicial proceedings on all levels in considerable detail. It is granted that prosecutions may, in fact, have been instituted or that events may have passed this conclusion by since completion of the article.

^{page 20 note 2} Penal Code, ss. 61, 62, cap. 24, Laws of Kenya, 1948 Revision.

^{page 20 note 3} S. 62 covers administering of an oath to bind to person to engage in mutinous or seditious enterprise, commit any offence not punishable by death, disturb the public peace, be of any association, etc., formed for the purpose of doing any of the aforesaid acts, to obey the orders of a body, leader or other not having authority of law for that purpose, not to inform or give evidence against any associate, confederate or other person, and not to reveal or discover any unlawful association, etc., or any illegal oath or engagement that may have been administered or tendered. Under sub.-s. (2) it is unlawful to take any such oath or engagement not being compelled to do so.

^{page 20 note 4} Ord. 2/1950, ss. 2 and 3.

^{page 21 note 1} The Proclamation of a State of Emergency was issued on October 21st, 1952.

^{page 21 note 2} There had been a prosecution of oath administrators as long before as March 1948; see Corfield, op. cit., p. 312.

^{page 21 note 3} Cap. 63, Laws of Kenya, 1962 Revision.

^{page 21 note 4} Ord. No. 52 of 1955, ss. 4, 5, 6.

^{page 22 note 1} [1962] E.A. 110, C.A.

^{page 22 note 2} (1951), 18 E.A.C.A. 139.

^{page 22 note 3} Kenya S. Ct., Emergency Cr. Case No. 64/1955 (unreported).

^{page 22 note 4} (1953) 26 K.L.R. 100.

^{page 23 note 1} Act 3 of 1969 (Kenya Gazette Supp. No. 27 (Act No. 3)), April 18th, 1969.

^{page 23 note 2} Constitution of Kenya, s. 84 (1).

^{page 23 note 3} Id., s. 84 (2).

^{page 23 note 4} Id., s. 84 (3).

^{page 23 note 5} Id., s. 84 (4).

^{page 23 note 6} Id., s. 84 (5). As of November, 1969, no legislation has been enacted under the powers conferred: letter (ref. 49/79–4) of October 21st, 1969 from the Deputy Registrar of the High Court of Kenya.

^{page 24 note 1} No rules have yet been made: Deputy Registrar' letter, ibid.

^{page 24 note 2} No. 15 of 1897, hereinafter referred to as N.C.R.

^{page 24 note 3} N.C.R., s. 2 (a) and (b).

^{page 24 note 4} N.C.R., s. 3.

^{page 24 note 5} N.C.R., s. 4.

^{page 24 note 6} N.C.R., s. 15.

^{page 24 note 7} N.G.R., s. 14.

^{page 24 note 8} N.C.R., s. 46.

^{page 24 note 9} No. 15 of 1898, which is not available in the High Court library.

^{page 24 note 10} Nos. 20 of 1899, 12 of 1901 and 19 of 1901, none of which is applicable to the present subject.

^{page 25 note 1} No. 21 of 1899.

^{page 25 note 2} Ord. No. 31 of 1902, amended by Ord. No. 11 of 1903 and No. 13 of 1905, neither of which is applicable here; repealed by Ord. No. 13 of 1907.

^{page 25 note 3} S. 15(1).

^{page 25 note 4} Ord. No. 13 of 1907, Schedule III.

^{page 25 note 5} S. 10.

^{page 25 note 6} The Native Tribunal Rules, 1911, East Africa Protectorate Ordinances and Regulations, Vol. XIII, p. 53.

^{page 25 note 7} Govt. Notice 43/1913, published in the Official Gazette of February 13th, 1913.

^{page 25 note 8} R. 15 (1911 Rules); R. 19 (1913 Rules).

^{page 25 note 9} R. 4 (1911 Rules); R. 5 (1) (1913 Rules).

^{page 25 note 10} “Some notes on native laws and customs”, 1 E.A.L.R. 97, Appendix 1.

^{page 26 note 1} Id., at 98.

^{page 26 note 2} From Appendix I of 1 E.A.L.R.: Wanyika—“The binding form of oath is to swear by the hyena”; Galla—“… by a spear”; Waboni—“The Waboni swear by stepping over the tail of a wild animal or a spear, with the invocation ‘May this animal’, or this spear ‘kill me if I do not tell the truth’.”; Masai—“If a speaker’s veracity is challenged, if a man he swears ‘By my sister’s garment’, if a woman, ‘By my father’s garment’ ”; Jaluo Nilotic Kavirondo—“A person challenged may swear to his innocence or his veracity by stepping over a piece of ‘Murembe’ tree placed between him and his challenger and saying, ‘If I am guilty’, or ‘do not speak the truth, may this tree rise and kill me’ ”; Akamba—“The Akamba have no form of oath considered generally binding, but perform certain rites to evidence the honesty of a claim to property” (enlarged upon by discussion of variations of “kithito” oath in Appendix I, of (1910) 3 E.A.L.R. 117); Akikuyu—“The most binding form of oath is for a goat to be bound and beaten to death with a club, the operator meanwhile declaring ‘If I do wrong, say what is untrue, etc., may I die like this Sengi’ ”, 2 E.A.L.R. 147. The examples given were all compiled prior to 1911.

^{page 26 note 3} No. 65 of 1951.

^{page 26 note 4} No. 17 of 1967. For a discussion of the Act see Cotran, “Integration of courts and application of customary law in Kenya” (1968), 4 E.A.L.J. 14–20.

^{page 26 note 5} See n. 2, supra.

^{page 26 note 6} Id.

^{page 27 note 1} Cap. 15, Laws of Kenya, 1962 Revision.

^{page 27 note 2} Leakey, op. cit., 52.

^{page 28 note 1} A Kithitu oath may be described as a talisman possessing the power to vindicate the truth by causing the death of any person who falsely swears on it, and also to cause the deaths of members of the swearer’s family and of his livestock. It does not only cause deaths but abortions and miscarriages also. A Kithitu is made up of many different things: typical ingredients are the teeth of a hyena, the teeth of a dead man, pieces of porcupine quill, special roots and plants, earth from the hearth of a dead woman, a piece of an earthen food-pot, certain special small stones. The ingredients are wrapped in a long binding, rather like a mummy-wrapping, and carried in a woven basket-like covering, or another container. Formerly, a Kithitu would never be touched by hand, and very few people will touch it now. When not required for use, it is kept in a hiding-place in rocks or woods, not in or near a homestead. It is a lasting thing and it is inheritable.

The power of a Kithitu varies according to the nature of its ingredients. The power is determined by the maker. A very potent Kithitu may cause death within seven days. But nowadays Kithitus which cause death within seven days are extremely rare. A weak Kithitu can take as long as a year, or even longer.

A Kithitu is kept in a secret place by a guardian who will hire it out to the person who wishes to administer it. Where the evidence in a case is so obscure that it is difficult for a court to arrive at a fair decision and the court decides for one reason or another to allow the case to be decided by Kithitu, it ensures that both parties are willing to have their case decided by Kithitu. Both parties must believe in Kithitu… Either party may swear on the Kithitu. The parties agree. One party fetches or brings the Kithitu and the other one swears. The swearer brings a goat… Both parties must consult their individual families. Consent of the members of the families is essential since the Kithitu affects all members of the family and near relations. But the plaintiff may not ask for permission because the Kithitu cannot affect him since he is not swearing… The Kithitu is always accompanied by its guardian. It is sworn in the disputed area (in land cases). It is first carried right round the disputed land and then it is laid down. The defendant then swears. The guardian first gives instructions and tells the parties how powerful his Kithitu ish… [The defendant] swears if what he asserts is not true the Kithitu may affect him. The defendant retains the possession of the land… The goat is slaughtered immediately after the swearing. Some little blood is poured on to the Kithitu before it is removed. The meat of the goat is eaten by elders who accompany the parties… If the Kithitu takes effect within the prescribed period, let us say, for example, a member of the defendant's family dies, this is proof that the defendant swore falsely and the plaintiff's claim was a genuine one. The defendant, without delay, informs the plaintiff of the ill which has befallen him and asks him to bring the guardian to remove the effects of the Kithitu in order to stop further deaths or damage. The plaintiff takes the possession of the land together with all his costs. He then brings the guardian who performs the purification.” From a report submitted to the author by a student who is a Kamba. From the recital of this mature District Magistrate, a reader can sense his conviction of the efficacy of the oath.

^{page 29 note 1} In brief: with the Resident Magistrate in attendance, the appellant, respondent and oath administrator walked around the boundary of the disputed land. Dry grass, special stones and a piece of broken pot were produced. The R.M. was given the words which the respondent was to swear. The respondent removed his shoes so as to stand barefoot on the soil. There followed a ritual symbolizing cooking. The respondent was given a small stick and swore: “I, …, do swear that if I am claiming this piece of land wrongly may the Kithitu which I am about to take have effect on me. If I go to get the Kithitu cleansed secretly may it take effect on me.” After the words “take effect” the respondent bent and hit the stick over a small shell filled with herbs and sand which had been placed near the fire. The goat was slaughtered and part of the small intestine and stomach was given to the administrator, who sprinkled refuse from the intestines over the area where the apparatuses for the oath were. The oath was announced as an oath which would take effect within seven weeks. The entire procedure greatly impressed the witnesses, and several commented upon the power of the oath, comparing the Biblical oath unfavourably in terms of effect on the swearer, in much the same terms as noted infra in the quotation from Kenyatta.

^{page 30 note 1} No. 65 of 1951.

^{page 30 note 2} Although it could be argued that the “justice of the case” might require that the matter be submitted to oath, it is equally true that under these circumstances the court would be waiving its own jurisdiction and ignoring its responsibility to decide the case on the evidence as presented. The problem, of course, comes in those instances where the evidence is so sketchy or contradictory that no decision is really possible, and although this has been one reason for certain courts submitting cases to oath, it appears not to have been the reason for the court in Mbindyo v. Kingali, where it was said: “no court has decided on the evidence which witnesses were telling the truth”.

^{page 30 note 3} African Courts Act, s. 25.

^{page 30 note 4} Ibid, s. 54. The provision is not found in s. 3 (2) of the Judicature Act (No. 16 of 1967).

^{page 31 note 1} This has become apparent during courses for District Magistrates at the Kenya Institute of Administration, where an extensive course in customary law is now part of the curriculum.

^{page 31 note 2} The method for determining customary law in East Africa was considered in Kimani v. Gikanga, [1965] E.A. 735, C.A., which held that where African customary law is neither notorious nor documented it must be established for the court’s guidance by the party intending to rely on it, and that as a matter of practice and convenience in civil cases the relevant customary law, if it is incapable of being judicially noticed, should be proved by evidence or expert opinions adduced by the parties. Ss. 13, 61 and 60 of the Kenya Evidence Act, 1963 (cap. 80), do not cast the burden of establishing the customary law on the court through assessors, for to do so would deprive the parties of an opportunity of testing the assessors’ views by cross-examination or further evidence. The ruling was implemented in practical form by the Chief Justice in his Circular to Magistrates No. 1 of 1968. The Magistrate’s duties in this respect are set forth, though not in mandatory terms, in s. 18 of the Magistrate’s Courts Act (No. 17 of 1967), which provides that the court may, if it thinks fit, call for and hear evidence of the African customary law applicable to any case before it. For a discussion of the determination of customary law and personal law in East Africa, see Durand, Evidence for Magistrates, K.I.A. Publications Committee, 1969.

^{page 31 note 3} Act No. 17 of 1967.

^{page 31 note 4} Magistrate's Courts Act, s. 2.

^{page 31 note 5} The Judicature Act (No. 16 of 1967), based on the old article 20 of the East Africa Order in Council, 1902, reproduced in later Kenya Orders in Council and finally in the Kenya (Jurisdiction of Courts and Pending Proceedings) Regulations, 1963.

^{page 32 note 1} Magistrate's Courts Act, s. 16.

^{page 32 note 2} Cap. 80, Laws of Kenya, 1962 Revision.

^{page 32 note 1} Kenyatta, op. cit., 225.

^{page 32 note 2} Oaths and Statutory Declarations Act, cap. 15, s. 21.

^{page 33 note 1} Ibid, s. 15.

^{page 33 note 2} Ibid, s. 20.