By Pravin Bowry
If students of recent Kenyan political scenarios and scandals are asked to underline one most profound group of people who contributed to the existing state of affairs, what would be their answer?
Consider the Electoral Commission of Kenya’s (ECK) handling of the 2007 elections, post-election mayhem, the coalition marriage, ongoing Pipeline/Triton saga and appointment of Chairman of the Interim Independent Electoral Commission (IIEC).
The distinct pointer is the so-called learned friends — the lawyers.
The indictment needs to be examined minutely lest I be hanged by my own.
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ECK’s head was a lawyer, Pipeline company had a lawyer at the helm with Attorney General, another lawyer, on the board of directors. The Minister for Energy is a wakili.
Laws now insignificant
The demise of local special tribunal to try perpetrators of post-election violence can be attributed to lawyers. The list is long.
Dispute resolution is the sole constitutional obligation of the Judiciary — composed of lawyers from top to bottom.
If you take a criminal matter to the court as a complainant, the stark reality is that the case will drag for years.
The plight of the accused, the complainant and witnesses can be measured only in pain and lost man-hours.
Civil cases — without even considering the appeal process — can drag for decades.
Delays in dealing with election petitions made a mockery of election laws.
In civil cases, with all the lawyer-generated applications, preliminary objections and judicial review applications based on intricate Civil Procedure Rules, lawyers and not litigants prevail.
The wrangling in the coalition government has its genesis around lawyers.
The core issue is that the citizenry had no faith in the Judiciary. Few citizens believed that the aggrieved voters could ever get justice in court. Primitive and brute force alone was seen as the only alternative to dispute resolution.
The bottom line is that the rule of law had broken down and three constituent arms of law —constitutional, criminal and civil — which should ordinarily have been invoked by all concerned to seek redress and remedies from the courts, were seen to be of total insignificance.
Lawyers prevail, not law
The injured and aggrieved must have a timely remedy in our existing law, the evicted neighbour recourse for trespass.
The remedy may be against the alleged criminal or the alleged wrongdoers also called a ‘tortfeaser’. Remedies lie against individuals and quasi-state organs. The Government can, has been and will always be sued for breach of various statutory obligations. That is easier said than done. The dilemma is that very few citizens would have the resources to engage a lawyer, find evidence, pay court fees and file a case say for repossessing his land from grabbers and wait for at least 10 years for his matter to be heard and determined.
The State through the Constitution has a legal duty to protect. If it fails to protect a citizen, it is fully answerable. How many of us have the financial and socio–economic will to take the State on?
When the ECK was accused of messing the elections, they told the aggrieved to go to court and sort the mess. This did not appease the citizenry but provoked them.
All too often, it is said that Parliament is supreme. When the High Court or the Court of Appeal declare an Act of Parliament as illegal, an ordinary citizen is tempted to say: "Oh that Judge, that lawyer reigns supreme!"
Is it the law, which reigns supreme or the lawyers? The writer is a lawyer in Nairobi
