by: Michelle Njuguna
I consider myself to be the heart of the courtroom. I assume an unassuming role in this glorious legal theatre. As the witness stand, I stand tall and steadfast in this sacred courtroom arena, bearing witness to the human condition that unfolds within these walls. Surely, even my significance was well known to the courtroom architect in his design analysis by placing my prominence second only to the Judge’s bench. Through their willful calculation they understood that specific aspects of the courtroom layout and design had the likely effect of influencing the perception of judicial proceedings by each participant. As such, I stand above the courtroom floor but only a few inches lower than court’s representation of authority; the bench.
Even with such great significance, I humbly welcome my visitors with honour and I only require just veneration in return. We begin every witness visit, with hands clasping firmly upon holy writ or where the witness would otherwise prefer; simply raised, with a solemn pledge that what will be said will be “the truth, the whole truth and nothing but the truth”. There’s something deeply captivating about the nature of the oath taken by the witnesses who stand within me. As the repository of their words, I feel a weighty responsibility to facilitate the pursuit of truth and justice. From the weak whispers to the resolute declarations, I embrace their words, providing a platform for their narratives to unfold. As it was aptly put by Chief Justice Evans Hughes while laying the cornerstone of the American Supreme Court Building in 1932, “The Republic endures and this is the symbol of its faith”. My role is nothing short of sacrosanct.
In return for their veneration, my wooden body provides them with comfort by acting as a buffer zone that separates the witness from the skilled, fiery, passionate and examining advocate.
Yet, among the grandeur of this hallowed hall and with the awareness of my uniqueness, I often find myself introspectively comparing my role to that of other characters like me that play a part in this production. The judge’s bench commands authority, the prosecution and defense tables support their respective advocates as they strategically display their prowess, the clerk’s table cues every matter to be heard and the public gallery is a symbol of openness and transparency. Here I am, the witness stand, a simple structure in this intricate theatrical production of justice, yet crucial to the narrative that shapes the destinies of those who take the stand.
Today is open court day and excitedly, I stand ready to welcome the potentially unsuspecting witness. Let us call him Lysander. At least, Lysander gets to meet me in person, at my finest. He gets to enjoy my embrace. Unfortunately, following the Covid-19 pandemic, such physical interactions have been greatly reduced and instead so many imitations of me came out of the woodwork.
One of these… usurpers, if I may call them that, is the advocate’s desk. In virtual court, the advocate’s desk often doubles as a witness stand. It is obviously not as magnificent as my design. What with the cramped space that the witness has to share with the advocate; the advocate’s open files that are squeezed in the corner (in a more than often failed attempt to be out of the view of the camera); the bible, if there is even one in the chambers, is placed so far on the other side of the room that it is almost always out of reach at the start of the witness examination; oh and let’s not forget the printed declaration that is neatly tucked into the bible for easy access to help out the witness take his oath. In some places, the boardroom table also doubles as the witness stand. It definitely is better than the advocate’s desk but it certainly cannot match to the design of my anatomy.
Anyway, today is a day where my excellence can once again be on display. We begin. One for one; the door bangs; all rise. The bench, the bar and all the members of the gallery exchange a solemn bow. The Counsel for the Plaintiff takes to his feet and proudly but respectfully introduces himself. Counsel for the Defendant thereafter also takes to his feet and introduces himself and his co-counsel too. Counsel for the Defendant has also come with his pupil who is part of the gallery but whose introduction will only come once her training is complete.
Both sides are ready to proceed.
Counsel for the Plaintiff calls upon his witness. Lysander, who is also the Plaintiff, takes the stand. He takes his oath. He places his hands on my stature. I feel no tremour from his palms. They are as steady as can be. He is calm. He knows his case. His words from here on out can only be anchored in truth. Counsel begins. The Plaintiff confirms that he would prefer to proceed in English.
Counsel: Please, Mr. Lysander, tell the court why you are here today.
Mr. Lysander: Milord, I am here today because the Defendant unlawfully crushed into my car because he was negligent. He caused damage to it and he has refused to pay for that damage.
I have been to this rodeo enough times and it is apparent when a witness, in their preparation, has sought legal aid from the omniscient Prof. Google, SC. From the witness statement prepared on his behalf, he knows that his case is pegged on negligence and Prof. Google, SC has told him that the word “negligence” or any variations of the word must appear in his testimony. So he obliges.
Counsel: Mr. Lysander, take us through what happened on the day of the accident.
Mr. Lysander: I was just driving by Cotton Avenue when all of a sudden the Defendant negligently rammed into the back left side of the car at the passenger seat. It happened when I was going to pick my daughter from school as I had received a call that she was unwell.
As the witness speaks, so does the able Defendant’s Counsel take note of the testimony, carefully noting down the points on which to bait him.
Mr. Lysander narrates the events of that day from 7 months ago; it is clear as day in his mind. He remembers it as if it was yesterday. He gives his testimony and his advocate concludes with the words, “that is all, Milord”. There is a moment of silence as the Honourable Judge completes his notes. Thereafter, the Judge peers over his glasses and signals to the eager Counsel for the Defendant to take to his feet.
Defendant’s Counsel: Mr. Lysander, how are you today?
Mr. Lysander: I am good. How are you?
Defendant’s Counsel: I am well. However, I am the one to ask the questions today. Bwana Lysander, you swore your oath on a bible. Can we all comfortably be assured that you are a Christian?
Mr. Lysander (seemingly confused as to where all this is going): Yes, I am a Christian.
Defendant’s Counsel: You said you were driving by Cotton Avenue when the accident occurred, yes?
Mr. Lysander: Yes.
Defendant’s Counsel: Cotton Avenue has a junction, yes?
My Lysander: Yes.
Defendant’s Counsel: The junction is controlled by timed traffic lights, is that correct?
Mr. Lysander: Yes.
Defendant’s Counsel: Is it true that at that traffic lights, there are cameras installed that flash at passing vehicles?
I started to feel slight tremours on my wooden build. My visitor is not at ease.
Defendant’s Counsel: Mr. Lysander, do I need to repeat the question?
Mr. Lysander: I don’t know. I have never seen them.
Defendant’s Counsel: I hope that I need not remind a devout Christian such as yourself that you are under oath.
Mr. Lysander: Your Honour, sina uhakika.
Oh, my visitor who was happy to proceed in English has now switched languages to accommodate his discomfort. The Defendant’s Counsel takes notice of this and offers to provide the witness with a bottle of water if he is in need of it. From the way he is gripping me, he may prefer something stronger. Upon a humble decline from the witness, the Defendant’s Counsel begins to flip pages from his bundle of documents.
Defendant’s Counsel: I would like to direct this Honourable Court to the photo exhibit on page 21 of the Defendant’s bundle of documents. Bwana Lysander, is this a photograph of Cotton Avenue?
Mr. Lysander: It looks like it.
Defendant’s Counsel: What is the date on the photograph?
Mr. Lysander: 3rd September 2023.
Defendant’s Counsel: Is that the date that the accident you were involved in took place?
Mr. Lysander: Yes, your Honour.
Defendant’s Counsel: Is that your number plate on the car on the photograph?
Mr. Lysander (eyes nervously darting across the courtroom in a desperate but failed attempt to get help on what to say from his Counsel): It looks like the one your Honour.
Defendant’s Counsel: Is that your car in the middle of the junction at Cotton Avenue?
Mr. Lysander: Milord, ye… ye… yes, it is, your Honour.
Defendant’s Counsel: Is the traffic light red?
Mr. Lysander (hesitantly): It would seem so, your Honour.
Defendant’s Counsel: Is the car approaching the left side of your vehicle, the Defendant’s car?
Silence
Defendant’s Counsel: My offer on the water still stands if you are in need of it, Bwana Lysander.
Mr. Lysander (with incertitude): It looks like the one.
Defendant’s Counsel: So, since you testified that the Defendant was negligent, it is clear that it was you who violated your duty of care. In fact, you were driving in such a rush because you received a call from your daughter’s school that she was unwell that you failed to be attentive to the traffic lights thereby put yourself in the way of oncoming vehicles that had the green light to go. So, if truth be told you are the one who was negligent, isn’t that so?
Plaintiff’s Counsel: Objection your Honour!
Defendant’s Counsel turns to his co-counsel and asks him if there are any further questions. He answers in the negative. He then turns to face the gallery, to the meek pupil seated right behind him. She is busy taking down the hearing notes. This is a lesson on trial advocacy and she must be attentive. She knows that writing aids in double retention. So she writes. She is startled by her Master’s turn. He whispers to her, “any other question?”. She feels surprised that the Counsel would even consider her thoughts worth of the moment but she’s also just happy to be included. She quickly saves face by shaking her head to confirm that she has no other questions; as if she had been thinking of them in the first place. He then proceeds to address the court.
Defandant’s Counsel: No further questions, your Honour.
On such days, even that wood that forms my physical make-up cannot take the moisture from the witness’ sweaty palms. Like I said, I provide a platform for narratives to unfold and this one is unfolding on the question of a driver’s duty of care. It is in such moments that I am thrilled to be part of the theatrical production of justice.
The Honourable Judge has looked at the clock. It is way past lunch hour. He asks the advocates to take another date to resume the examination. I feel relieved. The witness’ tremours were now interfering with my structural integrity. A date has been taken a month from today. Court is adjourned. All rise. All solemnly bow.
I live to see another day.