COTU reacts to court order barring state use of private lawyers

The Central Organisation of Trade Unions (COTU) has backed a High Court order stopping government agencies from outsourcing legal work to private law firms.

The union sided with a judge against the legal profession in a rare split over access to public funds.

In a statement on Wednesday, January 14,  the union supported  orders issued by Justice Samuel Mukira of the Nakuru High Court barring public entities from engaging, procuring or paying private advocates in court cases.

COTU said national and county governments, state corporations and parastatals have wasted public money by routinely outsourcing legal services despite having in-house counsel.

The union said the practice demoralises state-employed lawyers and weakens public institutions.

“Indeed, so far, billions of Kenyan shillings have been sunk into private law firms that continue to issue outrageous fee notes to public institutions financed by taxpayers’ money, even as working conditions, collective bargaining agreements, pensions and service delivery continue being affected,” said COTU Secretary General Francis Atwoli.

Atwoli noted that legal fees charged by private advocates in some cases exceed funds allocated for development and staff salaries.

“The craze in outsourcing legal services by national and county governments, state corporations and parastatals only point to the fact that private law firms have become conduits of corruption being used by public institutions,” observed Atwoli.

COTU said institutions unable to handle cases internally should forward them to the Office of the Attorney General, headed by Attorney General Dorcas Oduor, arguing it has trained lawyers employed by the state.

“As COTU we have consistently opposed the outsourcing of services at all levels because it has resulted in job insecurity and demoralisation of workers,” explained Atwoli.

“The continued outsourcing of legal services and hefty fee notes have left many public institutions financially weakened and workers exposed to delayed salaries, underfunded social protection and deteriorating public services.”

The union said state-employed lawyers should defend government agencies in court as part of their core mandate.

The position puts COTU at odds with the Law Society of Kenya (LSK), which raised concerns over the court order a day earlier.

LSK President Faith Odhiambo said the ruling threatens the livelihoods of advocates and revenues of law firms contracted by government agencies and counties.

“We are apprehensive that the current pattern of abuse of judicial powers threatens to spark outrage among both the public and our members,” said Odhiambo.

“We shall not sit back and watch the Judiciary, the last line of defence for the people of Kenya, run rogue against its people. Unless this trend is nipped in the bud with the requisite firmness, we are prepared to agitate for radical surgery as a means to uphold our Constitution,” warned Odhiambo.

Odhiambo said the society had appointed a lawyer to seek the lifting of the orders.

The case was filed by Busia Senator Okiya Omtatah, Nakuru-based surgeon Dr Gikenyi Magare and five others.

An audit for the 2023/24 financial year by the Office of the Auditor General (OAG), led by Auditor General Nancy Gathungu, showed county governments owe lawyers Sh39 billion in legal fees.