It is with the greatest pleasure that I return to the Law Society of Kenya today: first, as a member, then as a past officer whose colleagues gave the privilege of leading it, and now, as one who is privileged to have the Society as a partner in re-establishing the Rule of Law in our country.
My invitation to speak here could not have come at a more fortuitous time – a time of great hope but also a time requiring great effort.
The Law Society of Kenya is no stranger to great effort in pushing for the Rule of Law. Over the years, the LSK has played a leading role in upholding constitutionalism and challenging oppression and lawlessness.
The LSK and its members have repeatedly been a key component of the forces of liberation in our country. The first frontier of this struggle was opening up the Judiciary and the Bar to all Kenyans in the 1970s. In the 1980s and 1990s, the LSK Council conquered the second frontier by demanding the registration of other political parties besides Kanu.
Countless times, LSK members drew the line that first halted and then reversed the tides of repression under various regimes. In 1991, at the height of the repressive Moi years, Aryeh Neier, a lifelong human rights defender and Chair of Human Rights Watch at the time, wrote in an admiring article:
“What accounts for the dedication of so many Kenyan lawyers to the human rights cause? First, there is the relative prestige of the legal profession. Their status gives them more latitude than is enjoyed by others and ensures that their persecution will not go unnoticed. The other explanation, I believe, is that a few remarkable individuals inspired their professional colleagues. Gitobu Imanyara’s magazine, the Nairobi Law Monthly, enabled the Kenyan legal profession to speak to a broader public that cares about matters of democracy and human rights. In the process, the lawyers acquired a sense of their own responsibility to champion these causes, a burden they seem willing to bear.”
Twenty years later, I still hear the ringing call to service in the new Constitution. This is the new frontier. New responsibilities are upon us, and we have assumed new burdens. It is not accidental that appointments into many public positions – in the Judiciary, the State Law Office and the Directorate of Prosecutions, as well as in independent commissions on security, elections, rights, and the media -- require one to be an advocate of good standing for a number of years.
The LSK’s exemplary past is, however, not enough. After liberation, vigilance is just as necessary, if not more so.
Besides merely occupying positions, I see an urgent priority for members of the LSK to achieve the full implementation of the Constitution. The Constitution is the product, in no small part, of the great exertions of, and sacrifices by, the LSK membership. This membership cannot pretend indifference when it comes to the implementation of the Constitution. Its membership cannot be party to ill-disguised maneuvers designed to subvert the new constitutional order and defeat the genuine aspirations of the Kenyan people.
More than any other section of our society, we are the officers of the Constitution and the foot soldiers for the changes it brings. The completion of the several transitional steps and the progressive and irreversible fulfilment of its prescriptions are fundamental if we are to give meaning to the whole Constitution.
We shall disagree, as we must, about the best way to implement the Constitution. But dissent is what adorns democracy with beauty and grace. And dissent is not about petulant disagreement and petty rebellion, but rather an expression of principled differences. The elegance of debate is not to be found in the volume of noise but in the depth of knowledge. Ultimately, it is reform alone that will give life to the aspirations of all Kenyans – as the Preamble states – for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the Rule of Law. This burden is our natural professional burden. It is also one of the statutory aims of the Law Society: “To protect and assist the public in Kenya in all matters touching, ancillary or incidental to the law.”
The call of duty is all the more emphatic because the subject and value found most widely in the Constitution of Kenya is justice – its institutions, its personnel, its administration, and the redress and protection it offers to every person in Kenya.
The duty commands are found in Chapter 10 on the Judiciary; Chapter 15 on the various Independent Offices and Commissions. More are also outlined in Article 156 on the Attorney-General, Articles 157-158 on the Director of Public Prosecutions and Articles 243-247 on the Police. Chapter 17 on the Enforcement and Construction of the Constitution; Article 10 on the national values and principles of governance; and, hugely, Chapter Four, the internationally admired Bill of Rights, provide an umbrella of duties and responsibilities that call lawyers to action.
The Constitution is a frame of reference not just for those who go to court, but for every lawyer. The realisation of the aims and objectives of the Constitution and its provisions depends upon every part of the legal profession – judges, magistrates, advocates, university academics, law school teachers, investigators, prosecutors, advisors, para-legal workers, court staff, private practitioners, in-house lawyers, State counsel, State officers -- and upon their professional associations and bodies, including, principally, the Law Society of Kenya.
I see a joint responsibility for the Judiciary and the Law Society of Kenya to set the foundations for a jurisprudence of social justice and human rights. Our joint task is to create and enrich that jurisprudence – a robust indigenous, patriotic and progressive jurisprudence as commanded by the Constitution and the Supreme Court Act. These instruments specifically expect the Judiciary, the Academy, the Bar and think-tanks within civil society to develop jurisprudence.
The Judiciary is now filled with women and men who are technology-savvy, computer-literate and predisposed to continuous learning. All judges now have access to a legal researcher. Going forward, I see a successful legal practice in Kenyan courts as hinging less on the artful mastery of clever tricks and more on detailed written submissions that can stand scrutiny and interrogation.
Now, more than ever, the Law Society has an obligation to help the Judiciary in its efforts to transform by matching the intellectual competence of the courts with scholarly acuity. Lawyers must read more. They must sharpen their research skills in order to help the Bench to arrive at the truth. And they must work harder.
Lawyers who are more experienced and qualified must take up the challenge to mentor and lead their colleagues. Ultimately, I would like to see a Bar where the title of Senior Counsel is not conferred only on the basis of age, but rather by relying more on competence, deriving from learning and experience. I would like to see younger lawyers rise to become Senior Counsel on the strength of their legal practice and the contribution they make to our jurisprudence.
Yet public confidence in the legal profession is not where it once was. Kenyans have demanded change through the Constitution, and made it clear that reform in the Judiciary without reform in the Bar, or vice versa, is illusory change – only another trick by lawyers. It is only by simultaneous reform in both the two serving sectors of the law that the whole legal profession can regain the confidence of the public.
Just as the Judiciary has begun to reform, so, too, must the LSK start extensive internal consultations, and then with other stakeholders and the public, to move to reform. The time to institute for reform in the Bar is now. We cannot pretend that all is well in the Bar - it isn’t!
The Judges and Magistrates Vetting Board, and the law that established it, are a process of both reform and rethinking inspired by the Constitution. Advocates have cheered on as the Vetting Board made its determinations. The Bar must accept that this is the new standard of accountability Kenyans require both for the Bar itself and the greater public service in the country. This goes beyond the existing mechanisms of the Disciplinary Committee and the Advocates Complaints Committee. The Judges have accepted this in their profession. So, too, must the advocates.
A large number of the complaints against judges showing up before the Vetting Board come from advocates, the LSK and its various chapters across the country. You should have no hesitation in forwarding genuine complaints. We judges always keep in mind what Mr. Justice Frankfurter of the U.S. Supreme Court said of that court: “We are not final because we are infallible. We are infallible because we are final!” So genuine complaints are a proper course to follow, and our judges and the Judicial Service Commission are responding to each of these, and will continue to do so.
But I have also been told of certain complaints that have come before the Vetting Board which, upon closer scrutiny, have been revealed to be only a cover for the negligence or incompetence -- or worse -- of the advocates involved. Such advocates are unwilling to admit their own errors, and they then ‘advise’ their clients that the decisions are due to the ‘corruption’, ‘bias’, ‘misbehaviour’ or ‘incompetence’ of the presiding judges. A complaint follows to the Vetting Board, supposedly ‘written’ by the aggrieved lay client, full of legal phrases and even Latin terms!
It is not acceptable that advocates should resort to bullying tactics in their zeal for their clients and subsequent fees. The vetting process cannot – and must not -- be used as a tactic of advocacy to exercise control over judicial officers. Many judges and magistrates have given their all in the service of the law and to the country, working under very difficult circumstances. Lawyers should be the last group of people to use the pretext of vetting to harass and intimidate them. This would not only be an adulteration of the process, but also a subversion of the course of justice. I have asked judges and magistrates not to entertain and succumb to this abhorrent conduct. Your membership must also be asked to cease it!
On the other hand, there has been a rise in complaints sent to the Advocates Complaints Commission, and the Disciplinary Tribunal. Numerous others are finding their way to the Judiciary Ombudsperson’s desk. Two examples are illustrative. An advocate in Nakuru was constantly seeking adjournments but misled his client that the file was missing from the registry. Another advocate entered a consent judgment to transfer the custody of a child to her father against the wishes of his client, the mother, and despite the girl’s claims in court that her life was in danger. These cases have been forwarded to the LSK, but there is still no response.
I am reminded of the Swahili proverb – Nyani haoni kundule!
For the Law Society to bear its new burden with grace and decorum, its members must transform themselves and their professional body in a manner that responds to the demands of the Constitution.
The lie of the land has changed so irrevocably that it is doubtful the advocacy of yore will continue to subsist for much longer. If the stock of your legal practice rests in the ability to intimidate judges and magistrates, cashing in political debts and other networks of patronage, you will need to change professions. If using legal technicalities, jargon and loads of Latin as a fig leaf to cover professional competence gaps, integrity deficits and intellectual sloth, you will soon be exposed.
The Judiciary is becoming more competent and more confident by the day. For advocates to win cases before this Judiciary, they will need to work hard at research, not just of the law but of many other disciplines, embrace the use of expert witnesses, and technology.
Although members of the LSK occupy a special place in the justice system as a critical link between the courts and those who use their services, the Constitution also recognises and provides for individuals or groups to represent themselves.
If advocates are to continue enjoying the trust and respect of the society, they must provide real value that cannot be obtained anywhere else. The Law Society must embrace public legal education and vigorously promote legal aid. Its members must commit to serve the public good and further the ends of justice rather than become experts in obtaining adjournments and injunctions.
Lawyers must adhere to the code of conduct that puts distance between them and the technician of the law around the corner shop; and they must be ready for more public scrutiny of their practices.
Under the new Constitution, the bar of public morality has been raised, and the frontiers of public disclosure greatly enhanced. Whereas I completely understand the principles behind advocate-client relationships, I recognise that there is need to debate and rethink the manner in which lawyers establish client accounts.
Furthermore, it is no longer tenable to run an open market economy and still insist on cartel-like behaviour. We must awaken to the fact that the principles that undergird competition policy and law demand open market operations in the determination of price. Increasingly, I am receiving representations from the public, corporate citizens and interested groups that are solidly based on the constitutional principle of public participation requiring debate on the Advocates Remuneration Order. I am no longer able to make these orders quietly without regard to public voice and what constitutional requirements that privilege disclosure and public participation. Debate on these issues is not only healthy, but also necessary.
As Chief Justice, I deeply value a Bar that provides constructive engagement and criticism. Such criticism must, however, not just be habitually uni-directional or perpetually self-serving.
The scorched-earth policy witnessed recently in serving up criticism on the Judiciary injures the Law Society of Kenya just as it hurts the profession and undermines the practice of its members. When the Rule of Law fails, the Bench might be blamed, but so too, is the Bar. In the end, the two must remember that they are in this together.
Mahatma Gandhi, himself a lawyer, once said that strikes are an inherent right of working [women and] men for the purpose of securing justice, but they must be considered a crime immediately there is the acceptance of arbitration. When lawyers refuse to engage in legal processes for resolving disputes and instead resort to boycotts, strikes and actions that border on criminality -- such as forcibly preventing litigants from accessing courts – it is doubtful that they are serving the rule of law.
Judges continue to receive communication from lawyers that is manifestly discourteous, and even perhaps containing defamatory language. One is left questioning the objectives of such conduct, and wondering if there is some internal mechanism for ensuring professional courtesy.
Even with the problems outlined, I would still like to pay tribute to the Law Society of Kenya for being a true partner of the Judiciary in the delivery of justice. The LSK has similarly continued to play a critical role in unlocking obstacles to access to justice through its participation in the Court Users Committees around the country. In the days to come, we hope to deepen this partnership and make it more meaningful.
The Judiciary is introducing the Kenya Inns of Court as a site of collaboration between the Bar and Bench to improve the quality of justice and jurisprudence. It is also a joint social responsibility venture to promote greater public understanding of the principles of the Rule of Law, the enhancement of good governance and sustainable development.
Those of you in Mombasa may have already participated in or heard about the workings of the Kenya Inns of Court as a think-tank of sorts on legal issues. We hope to replicate the system all over the country, publish position papers from the discourses, and set up a national secretariat for coordination.
Additionally, the Office of the Chief Registrar has set up an electronic practising certificate issuing system capable of processing all your certificates -- 6,000-plus -- in a day. An online Court Fees Calculator will take away the human hand from the assessment of court fees, and a Pending Cases Form has been developed for lawyers and litigants to complete and return in order to help the Judiciary to update its database.
You are also now familiar with the Ombudsperson in my office. The office is supported by a service desk with modern physical and electronic trouble-shooting capabilities. I urge you to embrace these innovations and deploy them in eliminating the bottlenecks we continue to encounter in the administration of justice.
Finally, vetting, or any corrective process within the Bar that seeks to address the past, must be accompanied by the LSK crafting the equivalent of the Judiciary Transformation Framework to chart the future. It must encompass all parts of the advocate’s profession: re-examining university curricula and postgraduate training, the passing on of the abstract traditions of the Bar, the systemic correction of aberrations, the raising of standards, internalising ethics, emphasising etiquette, increasing respect to the duties owed to clients, restoring the respect of the public in the advocate’s profession. The Judges and I would be greatly pleased to share our experience in the drawing up of such a programme. Such consultations should move on to institutionalise greater collegiality between Bench and Bar, in the enlargement of that desired jurisprudence of social justice and human rights and respect.
Dr. Willy Mutunga, D.Jur, SC, EGH.
CHIEF JUSTICE/ PRESIDENT
SUPREME COURT OF KENYA