2020
Anti-Corruption Commission, Sierra Leone, we believe in communication, accountability and transparency.

FOUNDATION DAY LECTURE BY FRANCIS BEN KAIFALA ESQ., THE COMMISSIONER OF THE ANTI-CORRUPTION COMMISSION OF THE REPUBLIC OF SIERRA LEONE AT THE SIERRA LEONE LAW SCHOOL TO MARK THE COMMENCEMENT OF THE SCHOOL’S ACADEMIC YEAR.

“KPANA BEFORE THE GATEKEEPERS: DISMANTLING THE DESIGNED ROADBLOCKS TO ACCESSING THE LAW BY THE ORDINARY MAN”

All Protocols Observed.

 

This is not your everyday lecture on the law as I want to take this opportunity, at the beginning of the academic year of the Law School, to open your minds to “think the law” not just be taught what it is. I want you all to ponder on this parable. . . which is captured in this 7-minute video I now play for you. Watch, think, think again:

 

“Before the law sits a gatekeeper. To this gatekeeper comes a man from the Country who asks to gain entry into the law. But the gatekeeper says that he cannot grant him entry at the moment. The man thinks about it and then asks if he will be allowed to come in sometime later on. “It is possible,” says the gatekeeper, “but not now.” The gate to the law stands open, as always, and the gatekeeper walks to the side, so the man bends over in order to see through the gate into the inside. When the gatekeeper notices that, he laughs and says: “If it tempts you so much, try going inside in spite of my prohibition. But take note. I am powerful. And I am only the most lowly gatekeeper. But from room to room stand gatekeepers, each more powerful than the other. I cannot endure even one glimpse of the third.” The man from the country has not expected such difficulties: the law should always be accessible for everyone, he thinks, but as he now looks more closely at the gatekeeper in his fur coat, at his large pointed nose and his long, thin, black Tartar’s beard, he decides that it would be better to wait until he gets permission to go inside. The gatekeeper gives him a stool and allows him to sit down at the side in front of the gate. There he sits for days and years. He makes many attempts to be let in, and he wears the gatekeeper out with his requests. The gatekeeper often interrogates him briefly, questioning him about his homeland and many other things, but they are indifferent questions, the kind great men put, and at the end he always tells him once more that he cannot let him inside yet. The man, who has equipped himself with many things for his journey, spends everything, no matter how valuable, to win over the gatekeeper. The latter takes it all but, as he does so, says, “I am taking this only so that you do not think you have failed to do anything.” During the many years the man observes the gatekeeper almost continuously. He forgets the other gatekeepers, and this first one seems to him the only obstacle for entry into the law. He curses the unlucky circumstance, in the first years thoughtlessly and out loud; later, as he grows old, he only mumbles to himself. He becomes childish and, since in the long years studying the gatekeeper he has also come to know the fleas in his fur collar, he even asks the fleas to help him persuade the gatekeeper. Finally his eyesight grows weak, and he does not know whether things are really darker around him or whether his eyes are merely deceiving him. But he recognizes now in the darkness an illumination which breaks inextinguishably out of the gateway to the law. Now he no longer has much time to live. Before his death he gathers in his head all his experiences of the entire time up into one question which he has not yet put to the gatekeeper. He waves to him, since he can no longer lift up his stiffening body. The gatekeeper has to bend way down to him, for the great difference has changed things considerably to the disadvantage of the man. “What do you still want to know now?” asks the gatekeeper. “You are insatiable.” “Everyone strives after the law,” says the man, “so how is it that in these many years no one except me has requested entry?” The gatekeeper sees that the man is already dying and, in order to reach his diminishing sense of hearing, he shouts at him, “Here no one else can gain entry, since this entrance was assigned only to you. I’m going now to close it.”

 

This parable by Franz Kafka, known as 'Before the Law’, is geared to get us all too think about the law. Our academic syllabus and training in Universities and the Law School teach us “what to think”, not “how to think”. It teaches us the components of the law and not “the thinking” behind it. So we are producing lawyers that are no different from robots, with fixed understanding and programming. This lecture and this parable challenge you all to think.

 

I will, for the purposes of this lecture, use the Common Sierra Leonean name, Kpana, to depict “the common man” who seeks the law. Seeking the law has many meanings. It could be seeking justice. It could be seeking to know what the law really is. It could mean wanting to be a lawyer. It could mean understanding the law. It could mean life. Either way, do we really understand what the law is; and can the ordinary man at any time access the law which we fondly call “a biscuit”? Why should a law which has as one of its key features as “predictability” be a biscuit at all? Why for the 2000 plus years of human existence the law has similarly been with us, yet we seek it every day and never know what the outcome of any case would be until a judge pronounces it to be so? What is the use of the normative aspects of the law if we cannot say what it is unless judicial pronouncement confirms it to be so? Why is that which is supposed to bring about social order and human happiness be so convoluted and mostly deliberately shrouded in mystery? Why do we need judges to tell us what the law is if we have to study it for years first? What really is even the law? Is it what is in the books or what judges say they are?

 

Have you ever started playing a game and realized that you do not know all the rules; and no one seems willing or able to explain them? Or, have you ever dreamed of being stuck in a maze, unsure where to turn or of what even awaits you if you make it out? If you are then you are firstly a lawyer; but secondly and most importantly, you no different from the ordinary man - Kpana.

'Before the Law' is a parable, first published in 1915. It was later featured in one of Kafka's most famous works, The Trial. Both the parable and the novel pose questions about the nature of the law and the confusion caused by the law's mysterious set of rules and processes. The Trial’’s main character is suddenly arrested for an unspecified crime and spends the rest of the story trying to find out what his crime was and how to defend himself. At one point, the character hears a parable and wonders over its meaning. That parable is 'Before the Law.'

In the segment entitled Before the Law, Kafka’s recurrent protagonist is talking with a priest. He relates a story about a man that comes to a great door seeking the Law. Before it is a gatekeeper that tells him he can’t be allowed to enter at that moment. The man seeking the Law is perplexed, but intentional, so he waits, and waits and waits for the entirety of his life to be permitted to access the Law. The gatekeeper also waits and allows the man to continue waiting, but not letting him pass through the gate. As the man is dying, he wonders why he was the only person seeking the Law. The gatekeeper tells him, that the gate he guards was only meant for him and since he is dying, he, the gatekeeper is going to close it.

There is no way we cannot apply the experiences of Kpana, the ordinary man before the gatekeeper, in our ordinary lives. Don’t we all seek some Law, or some way try to understand its existence? Are we not barred in this struggle to understand the law by one gatekeeper or the other? The gatekeepers put in the ordinary man fear, doubt and confusion about that which he seeks? Picture this. . .the gatekeeper in the parable goes even further. He explains that there are deeper realms, that even he (meaning the gatekeeper himself) cannot know, and the man will not be permitted to reach them. Let us reflect on this for a second. . .what if the gatekeeper was deceiving Kpana? How would he have known since he was never allowed through the gates of the law? How would we know that we are not deceived by the law’s meaning and substance? Who gatekeeps the gatekeepers?

We come to a point in our lives at which we seek purpose and order, yet we are obstructed from this by gatekeepers. We want health, while declining in well-being, we want youth, while growing ever aged, we need love, yet never finding it. If we do, it's ephemeral and mostly soon to be lost. There is no constant or permanent principle to guide us in life. We seek a reason, a Law if you will, that will help us, and thus we seek it, but discover our path is obscured somehow!

Kafka creates an allegorical tale, in which we see the senselessness of being in the human condition perpetually seeking the law and not be able to find it. We all are Kpana, and anyone who tries to teach you the law is your alter ego. Teachers try to teach you what to think and not how to think. Our syllabuses are replete with what to think – some propounded over 200 years ago by, probably, some drunk English judge in a tailor’s wig (which attire we sadly admire and mimic to date to show our importance). So we seek the law but cannot find it because we are not thinking what it is first, before knowing it. Therefore, none of the explanations we receive will suffice; for you must understand yourself why you seek the Law before you can understand the law. What if I tell you the Law is not real, it is a lie. Would you abandon this course and leave? No you will not. However, if you are told you failed, you will drop out or be thrown out. A gatekeeper determines your fate then. What if the gatekeeper himself does not really know the law and was deceived in the first place about what he/she knows?

The law has many gatekeepers. Their purpose is to stand in the way of ordinary men and women like Kpana selectively inhibiting them from fully accessing the law. They create mystery by the language used or the way they are dressed. As in most situations the Common man finds himself, Kpana wants to know if he will be allowed in later; the gatekeeper says “possibly” – because keeping the situation vague will keep Kpana wanting, longing and hoping.  The gatekeeper describes the other more terrible gatekeepers that he would have to go through in order to achieve his goal (Does our appeal systems from the Court of Appeals to the Supreme Courts with fearfully dressed judicial staff picture in your mind what Kpana faces when he is before the law? Is the High Court judge in a red robe and horse-haired wig with books all around in a tense and solemn environment, not already fearful enough? Well, there are five in the Court of Appeals and Nine in the Supreme Court waiting for Kpana).

Kpana sits there for years and never gets in.  He is often indifferently asked questions by the gatekeeper. Just to desperately find means to gain access, he has to bribe the gatekeeper and sacrifices everything he had just to access the law. The gatekeeper accepts everything, but always with the remark: ‘I am only taking it to keep you from thinking you have omitted anything”. A sad Kpana, after losing his precious possessions to access the law, “curses his bad luck, in his early years boldly and loudly”. But what the gatekeepers really do is to extort the ordinary man while making him feel great about his experience.

When Kpana now frail is dying, the gatekeeper tells him that no one else could go through this particular door because it was made for him. That which was supposed to be open, was a façade. The ordinary man sacrificed everything but could not gain access.

To Kpana,  what does the law represent? What is the law if access to it by the common man remains Kpanaesque? In many countries, governments do not allow the common man to access the law; which in desperation pushes him to break the law by taking it into his own hands. What end does the law serve if the gatekeepers have separate doors and gates for every person? Does that not worry you about the law? Is it not worrying that the lawyer does not see black or white; but only sees grey – mostly filtered through prism of money? And the grey is ticker to either white or black depending on what side his client is after paying him?

What is the purpose of reading the law to become lawyers and judges if the legal system is not available to the normal citizen and there are gatekeepers to ensure it at various levels. What can we do about this since we are trained to do justice – because it is said, the law is the means; justice is the end! Why is the means not even easily accessible before we can talk about getting to the end.

The truth is, the gatekeepers represent the various levels of authority.  From the local authority to the highest level, the gatekeepers become less personal and more rigid in observation of the rules or laws established by authorities to patronize the ordinary man though they are paid to keep it open to them. Their purpose is to keep social order and help the authorities (outside the courts) know the issues between citizens or against the authorities and determine which deserves their attention – and justice.

When a case reads The State v. Kpana, and Kpana has to appear before a judge appointed by the state, paid by the state, and sits under the seal of the state; is Kpana really before an impartial decision maker? As lawyers, our understanding of how the law works is that a dispute arises before two parties (which can include the state) who appear before an impartial tribunal (a judge) who determines the law as between them. So when Kpana commits treason – which is a crime against the state, and the case reads The State V. Kpana, is there really a triad (three sides – the state, an impartial decision-maker, and Kpana)? Or it is a diad (two sides -The state representing itself by a prosecutor and the judge (on the one hand) against Kpana (on the other))? In any case, what are Kpana’s chances with the law?

The concept of independence as we know it is questionable. However, students of the law are generally introduced to the ideal type, or really a prototype, of courts involving 1. An independent judge applying 2. Pre-existing legal norms after 3. Adversary proceedings in order to achieve 4. a dichotomous decision in which one of the parties was assigned the legal right and the other found wrong. However, in real life, there are deviations in practice which make this ideal court (law) adjudicatory structure meaningless to the ordinary man (Kpana) – the only acceptable meaning of independence in this sense would mean the judge has not been bribed or was not in some other way dependent of one of the parties. But when we ensure this kind of independence by creating the office of the judge within some governmental structure, he is surely not independent for he is a dependent for whom he holds office.

To Kpana, attempting to differentiate the law from other authorities is a facade. Judging and administering are two sides of the same coin. Both the judge and the administrator apply general rules to particular situations on a case-by-case basis. Both tend to rely heavily on precedent, fixed decisional procedures, written records, and legalized defense of their decisions. Both are supplementary law-makers engaged in filling in the details of more general rules – if you have read Donoghue v. Stevenson or Rylands v. Fletcher, and many other cases (particularly where vague and manipulative expressions like public policy are used), you will understand this better – that contrary to conventional English law teaching, judges are in fact the greatest law makers. This is why, historically, conquerors used courts as one of their many instruments of controlling conquered societies. As it was then and as is now, governing authorities seek to maintain or increase their legitimacy through the courts. Courts have always been, and remain instruments of social control on behalf of the state.

Kpana has always been at the mercy of the gatekeepers – he gets justice where the state has no interest, or the adjudicator has no interest (the interest of any other thing, person (including the adversary), or any consideration whatsoever beyond the law, is the same as his interest) – and it is this last narrow sphere that is left after those two are eliminated that will create any possibility of fairness in earnest. There are times when even the state’s interest will be subsumed in the interest of the judge – including when he has been bribed, or has a higher interest like politics, tribal consideration, kinship, his ego, or just does not like Kpana at all. In that case, even the state itself will find itself at the mercy of the gatekeeper particularly when that gatekeeper has no fear of retaliation from the state. What Kpana or his lawyers can pray for is to find themselves in that third and narrow sphere whenever they present a case before a gatekeeper; because there is where justice, fairness, the law is guaranteed. That is where the gate can be opened in the narrow sense and Kpana goes through the first gate. But remember there are other gates, and each one more fearful than the others – and the spheres of interest have to be repeated before each one.

Kpana is allowed to pass through sometimes; other times he is not. To ensure the legitimacy of the process is maintained, Kpana is told he has a “right of appeal” before the other “fearful gatekeepers”; before a higher tribunal. Trial provides termination to conflict. But abrupt finality can result to revolt and loss of legitimacy. One of the functions of the “right to appeal” to a confused Kpana is to provide a psychological outlet or social cover – appeal allows the loser to continue to assert his rightness in the abstract without attacking the legitimacy of the system or refusing to obey the trial courts; thereby further compounding the assertion of the legitimacy of the system that tries him. Also, it creates the mirage of not perceiving the trial as a “two against one” situation. The availability of the appeal system allows the loser to accept his loss without having to accept it publicly. By failing to take his chance with appeal (another gate), he accepts his loss, with the system that tried him remaining legitimate, for he did not take advantage of the appeal process.

Kpana, therefore, faced with all these layers of confusion is left with three options – obey and die sheepishly like the man from the country, or change the law or the rules, or rebel and topple the gatekeepers (for other gatekeepers and pray his interest aligns with theirs). Why should Kpana patronize or bribe to access the law when the law is professed to be for him? Kpana could take his chances with any of the three options and succeed. For obeying only satisfies the social control mandate of the gatekeeper and he could let through; bribing the gatekeeper merely patronizes him and he may either fail Kpana or simply pass him to the other more fearful gatekeepers. The last option has led to war in many parts of the World throughout history – including Sierra Leone, as the TRC Report confirms (Foday Sankoh was a Kpana on trial in our court system shortly before he fled to Liberia and started the War in 1991).

As you all go through the Law School, think about the law and its gatekeepers (which may include yourselves). Reflect on the purpose of the law, and then, when you successfully go through, come let us work to open the gates for the “Kpanas” of our country. I do not wish to throw a wet blanket on the law; but to open your minds. It makes no sense that Kpana dies not accessing the law –  and the open gates be really closed after he dies because they were specifically made for him. You should strive to be gatekeepers more in the 3rd sphere – not allowing other interests (which includes yours)  be used to keep the gates of the law kpanaesque and inaccessible. Let us work to restore the prototype independence that we all yearn for – Kpana before an impartial tribunal, administering justice between two adversaries with fair outcomes between them. All this said, the law, as imperfect as it is, remains the most useful tool for social order and the next best thing – and we all have a duty to protect it while making access fairer and just.

 Francis Ben Kaifala Esq.

Commissioner, ACC