Judging Migai Akech: He wanted to be judge but was judged by social media posts

Before the interview, his name had been published alongside those of others, and the public asked to raise any “information of interest” about any of the 35 shortlisted candidates to the secretary of the Judicial Service Commission (JSC).

Referring to submissions from the public, one JSC commissioner told Prof Akech: “You’re said to be very vocal on social media, particularly on X, where you freely express your opinions and you’ve engaged in altercations with advocates or people who do not agree with your opinion. There’s a lot of that that has been said. Others also feel that you don’t take seriously other people’s ideas and suggestions.”

JSC chairperson Martha Koome wanted to know how he would deal with litigants and advocates “in view of the very strong expressions you have made that were picked by the public”.

Prof Akech’s argument before the interviewers was that he is a public intellectual who sometimes deploys humour.

“I’m an active citizen,” he replied. “And I think democracy cannot be practised unless citizens are active. Citizens being active means we must engage and we must engage robustly.” “My [academic] writing is very balanced, and I write with a lot of joy. And in the context of the social media, there has to be some humour. There has to be a way that we communicate so that we are able to bring people together so that they talk about issues. So, that’s what I’m trying to do. Have I disagreed with advocates? I don’t think it is advocates. I think there is only one individual that I have disagreed with. But we sat down. I went to his office – because this was somebody that was my teacher as well – and I told him, ‘I think I went overboard. Please forgive me.’ And I think the matter ended there.”

Unrelenting

In the end, Prof Akech did not make it to the list of 15 that eventually became Court of Appeal judges. Justices Issack Hassan, Katwa Kigen, Byram Ongaya, Hedwig Ong’udi and Chacha Mwita were among those who were picked and have since been sworn in.

No reasons were given for the picks, and Prof Akech took to X to question that as well.

“Article 47 of the Constitution requires the JSC to give reasons for its decisions. Why doesn’t the JSC give reasons for its decisions? Because in the absence of reasons, the process of recommending individuals for office of judge is very subjective,” he posted on February 26. “The JSC gives the public a veneer of accountability, not real accountability – public and subjective interviews, but very opaque and private behind-the-curtains decision-making. Surely, this cannot be what the Constitution intended.”

In an interview with Nation Lifestyle on March 3, the scholar said he was ambushed in the line of questioning that touched on social media activity.

Read: Court allows professors Charles Fombard and Migai Akech to join BBI case

“In law and in administrative law, there’s something called the right to notice. It should never be an ambush,” he argued. “You should tell me in advance that, ‘The post that we have an issue with is this one. Please come prepared to talk to us about it.’ They didn’t do that.”

Moreover, he said, he was questioned about the contents of an email he sent privately but which was leaked to the public through social media.

“One of the people that received that e-mail made it public,” said Prof Akech. “How do you side with the person that has done that? Then how do you then claim that is my social media post? I’m not responsible for it.”

But who is Prof Akech and how did he get himself at the pinnacle of Kenya’s legal scholarship? How did he manage to be among the first law students to graduate with a first class honours degree under the 8-4-4 curriculum? How did he end up studying law in the UK and the US? What’s with him and football, especially the Arsenal Football Club?

Narrating about his background, the 54-year-old started with the fact that his late father was a policeman.

“As you know, police officers move around quite a lot,” he said. “He died when I was five.”

They were living in Nyeri when his father, David Akech, died. His mother, Florence Akech, was employed by the police to get income to raise her six young children.

“She worked as an office assistant and messenger,” said Prof Akech, adding that his mother was posted to their native county of Homa Bay. “The one credit you give to the police is that they take care of their own.”

His early encounters with fairness or lack thereof came from his mother’s descriptions of her bosses at the police division – the Officer Commanding the Police Division (OCPD). Holders of the position are regularly transferred, and his mother would encounter the lenient and the tough ones depending on the personality of the person posted.

“So, I’ve always been fascinated by power,” he said. “I ended up studying three concepts: law, democracy, and power. I study power from a perspective of law and democracy.”

For secondary school, he attended Starehe Boys’ Centre and School before joining UoN to study law.

“I suppose I was very argumentative, and my English and literature teacher thought that I should study law,” he said, recalling his days at Starehe.

“When I got to law school, what really fascinated me was the philosophy of law. I began to question things. Law is a lot about procedures, and law is about a lot of rules. So for some people, it can be boring. But for me, I always wanted to know: what is behind these rules? What explains these rules? What is the philosophy of these rules? Do rules work the same way in different contexts?”

On graduation day in 1995, he was one of three in his class that achieved a first class honours, a rare feat. By that time, he had decided to be a law scholar.

“I wanted to become an academic because what excited me was thinking and writing about law. To become an academic, you need a PhD. It’s good to broaden your horizons. I thought I should venture abroad,” narrated Prof Akech.

He bagged a scholarship to go to the Cambridge University in the UK where he obtained a master’s in law in 1997. In 1998, he was admitted to the bar, becoming an advocate of the High Court of Kenya.

He later went to the New York University School of Law in the US where obtained another master’s in 1999. It is at the same institution that he got his PhD in 2004.

His four degrees have been framed and hung behind his desk at his law firm in Nairobi’s Hurlingham. Also at his office are two trophies that he has won as a footballer. He likes playing as a defensive midfielder, or “the combative one” as he told the interviewing panel. “I like to tackle in the game of football.”

The Arsenal story

It was from his stay in England that his interest in football grew. “I started taking my football seriously at Cambridge. I played for my college team. And that was my first time being abroad. The weather was horrible a lot of the time, so, I think what really kept my spirits up was me discovering that I could play football at some level. So, I joined the college team. We won a cup in the final of an intra-varsity competition, because Cambridge has very many colleges,” he said. “Since then, I’ve taken my football very seriously.”

It was around that time that he got drawn to the English Premier League side Arsenal. If you go through his X account, a majority of his posts are about Arsenal.

“Arsenal was on the up when I was in England,” he said. “They were fun to watch, so that’s when I started supporting them.”

He has also been involved in local football. Besides playing for the Railway Wanderers Football Club – which he does for fun – he has been in two key bodies at the Football Kenya Federation (FKF). One of them is the Independent Disciplinary and Complaints Committee, which he chaired from 2011 to 2016. “What we dealt with a lot were the usual problems that arise from football matches: fan trouble, particularly with Gor [Mahia] and AFC Leopards. We punished them quite a lot. I hope that helped. We also helped a lot of players with their contracts,” he said.

Since last year, he has also been the chair of FKF’s appeals committee, dealing with reviews that arise from decisions from various committees. But sports is just a small facet of what he has been doing. His mainstay has been academics, a field he says is not the most rewarding financially but makes him fulfilled.

During the January interview, he said: “The academia is a tough place, but it’s joyful. Tough in the sense that there’s very little money in it. And I’ve always wondered: did I make the right choice by going into a career that I knew would not give me sufficient income?” He said: “To be an academic is to live like a monk in many ways. You can’t be somebody who likes luxury.”

“In Outliers, Malcolm Gladwell says something that I think is very true: that to master any discipline, you must spend time on it. In the book, I think it talks of 10,000 hours,” Prof Akech added. “To be truly a master of anything, you have to spend time in it. To be an academic, you cannot do anything else.” He started off as a UoN assistant lecturer (1999), then advanced to lecturer (2003), then senior lecturer (2006), later associate professor (2011) and finally a professor in 2023. He gave his inaugural lecture in April 2024, titled “Taming the Tyranny of the Barons: Administrative Law and the Regulation of Power”.

“There have been four inaugural lectures at UoN’s Faculty of Law. I gave the third inaugural lecture since 1970,” he said.

In 2020, he set up his law firm, Migai Akech and Associates Advocates.

“I figured: ‘Let me at least finish the journey, get to the top of the ladder, and then I could always go to practice,’” he said. “I figured around 2020 that now it was becoming clear that I was getting to the top that now it might be a good time to do some other things, and try and make ends meet as well. I would not recommend it [being a pure academic] to other people.”

Over the course of his long journey in academia, he has taught about 8,000 students that include incoming Law Society of Kenya president Charles Kanjama and one-time holder of the seat, Nelson Havi. The Registrar of the Judiciary, Ms Winfridah Mokaya, was also his student. Some Court of Appeal judges have also gone through his hands. Some politicians, including Nandi Governor Stephen Sang, have also been his students.

He has done 80 publications published in various outlets and has also been engaged as a consultant in various projects across Africa. For instance, in 2022, he was engaged by Lesotho to help in constitutional amendment.

“They’d been trying to amend their constitution, which they actually eventually amended, thanks, in part, of course, to the advice that I gave, and also reformed their anti-corruption institutions,” he said.

Locally, Prof Akech’s name featured prominently in the proceedings around the doomed Building Bridges Initiative (BBI) that was aimed at amending the Constitution. His 2021 submission on the basic structure doctrine was accepted by the Supreme Court. He was also in the taskforce that drafted the Bail and Bond Policy Guidelines for the Judiciary in 2014.

Today, he continues with his lecturing, law practice – where he handles a range of clients that include celebrities and conveyancing clients – and all he can do to study the confluence of power and the law as first inspired by his mother. He believes in making the law simple, hence the reason he hates Latin expressions. “You know, lawyers love to be complex, so they love the Latin phrases, which is very alienating for the typical person. And when you go behind the Latin, all they are saying are very simple things,” he argues.

For all the aspersions the January interview might have cast on his temperament, he believes he is a reserved man.

“I think I’m very measured in my social media,” he said. “Which posts are these they were talking about?”

During that January interview, he also made a remark that grabbed headlines. He said as he introduced himself: “I believe I write very, very well. I write in a very balanced way as well. So, I think words like ‘hot air’ will not find their way in my judgments.”

He said he was shocked by how the remarks gained traction.

“It was a joke. Kenyans don’t have a sense of humour at all. I was actually very surprised by the response to that remark, because it was just a joke. I’ve known the CJ for a very long time, and I respect her tremendously,” he said. “It was not meant to be offensive in any way. It was just a light moment.”

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