- Irish Legal Geographies in the Era of Emergency:Independent Ireland, Colonial Kenya, and the British Colonial Legal Service
News of government appointments in Kenya always brings very forcibly to an Irishman’s notice how much that country should be called an Irish colony rather than an English one.Irish Times, 19 February 1934
For the remarkably well-connected Irish journalist and humorist Patrick Campbell, writing under the pseudonym Quidnunc, the appointment of an Irish chief justice in the person of Sir Joseph Sheridan in Kenya was not surprising. Nor, he added, “is it any wonder that Mr. Michael Hogan, who has been home recently from his legal practice out there, could tell me of the wonderful success of the TCD [Trinity College Dublin] association dinners.”1 Pondering the sizeable number of Irish chief justices known to him, Campbell surmised that “it would almost seem as if the Irish had a definite capacity for achieving high judicial promotion.”2 These observations have since been validated by Anthony Allott, founder of African law as an academic discipline at the School of Oriental and African Studies in the University of London. During the “late colonial scene” in Africa, Allott has observed, “colonial legal servants who hailed from Ireland constituted a striking proportion of the membership of the Colonial Legal Service, whether as crown counsel, law officers, or members of the professional judiciary.”3 [End Page 243]
While this “striking proportion” was far from exceptional on the African continent, historical writing aimed at investigating Irish judicial traffic to and from imperial trouble spots during the endgame of empire has been notably absent.4 This omission is partly symptomatic of the habitual divorcing of independent Ireland’s contributions to empire from the hegemonic nationalist narrative. Even within the historiography of the British empire, accounts of the Colonial Legal Service remain sketchy despite the central role of law in the British empire in developing transnational ideas and institutions. Likewise, while it is widely accepted that the criminal law of nearly all the states that were once part of the British empire continues to be based on colonial law, the evolution and legacy of emergency legislation as part of British counterinsurgency machinery have yet to be systematically explored in the study of twentieth-century colonial and postcolonial judicial systems. The outstanding exception, however, is Emergency Kenya (1952–59).5
During this period when the entire legal community in Kenya was badly split by the application of emergency powers, it is clear that nationality was far from a contingent factor in the selection of judges, but simple opportunism appeared to be the overriding motive for joining the Colonial Legal Service. The Irish-born cohort of the judiciary in Kenya rarely challenged or contested the position of the colonial establishment. As this article will show, when compared to their English and Scottish counterparts, Irish-born justices were remarkably conservative. Mapping the distinctly mobile Irish judiciary in Kenya from the turn of the century up to the Emergency period [End Page 244] allows us to gain valuable transnational perspectives on the genesis, growth, and endgame of Ireland’s judicial contribution. Besides using important archival material, this article draws heavily on newspaper sources detailing the Irish contribution in Kenya; these sources serve to illustrate the extent to which the Irish presence was articulated back to an independent Ireland distinguished by its national orthodoxies of self-sufficiency and Gaelic distinctiveness. Much has been written on the conceptual weakness of applying the term “decolonization” to imperial events in the postwar period, and the Kenyan case underscores its inadequacy. The Emergency coincided with the “most rapid period of growth in white immigration over the entire history of the colony.”6 Chief justices in Kenya, desperate that additional judges be recruited for the special courts, often communicated their anxiety to the Colonial Office. With so few opportunities available in Ireland, Irish judges largely filled this vacuum.
The Irish influx into the Colonial Legal Service at this time had its origins in a much longer tradition that can be traced back to the rapid expansion of the legal profession in Ireland in the late nineteenth century. From 1871 onward rising numbers...