Macharia Njeru in a better place to tackle some legal profession problems

Macharia Njeru who replaced Tom Ojienda as one of the two representatives of the Law Society of Kenya on the Judicial Service Commission (JSC), brings a good record to his new office. As the first chair of the Independent Policing Oversight Authority, (Ipoa), Njeru provided sound leadership to the newly-formed organisation, quickly establishing a principled and independent relationship with the government. In order to do so, Njeru remained strong in resisting the temptation to go for the spoils of office that were on offer as a way of compromising the independence of the institution that he was set to head.

Njeru was also strong enough to withstand what usually comes when one refuses co-optation: threats and vilification. In official circles, Ipoacame to be tolerated than liked, viewed in the same light as civil society organisations. In the selection of the members of Ipoa to replace the Njeru cohort, care has now been taken to bring more malleable people into Ipoa, and the difference between the two cohorts is already apparent. At the JSC, Njeru will face much of these same issues and the strength and wisdom that he showed at IPOA will continue to be needed.

This set of Law Society elections provides an opportunity to reflect on the entire electoral experience. While these were internal elections for a small body of 15,000 members, the elections have attracted a level of public attention that is vastly at variance with the number of people that directly participated.

Failing to groom

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Part of the source of attention for the elections was the external political meddling that became evident. The hand of the establishment became visible in the spirited attempts to bar Ojienda from participating in the elections and quickly led to an unfounded view that if Ojienda was the anti-establishment candidate, then Njeru had to be the establishment candidate.

A more informed view is that neither Ojienda nor Njeru was an establishment candidate and this was, in fact, the problem with the elections. Having slept through the nomination process, failing to groom a candidate, the establishment woke up when it was too late and now wanted to scuttle the elections, in the hope that a fresh start could provide an opportunity for them to bring in a candidate. There should be credit to a section of the leadership of the Society which stood up to the political encroachment, frustrating the attempted capture.

One of the reasons why the Society’s elections have become so political is as a result of the change of voting procedure. In the old days, the Society held its elections by postal ballot. Ballot papers were sent to members by mail, ensuring that each one was personally given the opportunity to vote. By providing a longer period within which the ballots could be posted back after voting, this system also promoted participation. Conversely, the new method of voting on an appointed day means that any member not available on that day misses out on a chance to vote. The down side of postal system was that there was no guarantee that members would remember to vote and post back their ballots.

With postal balloting, the incentive to campaign in the way that candidates now do, was limited. The fact that members now physically turn out to vote has directly influenced the campaign methods, and attracting the attention of outsiders like politicians, who now take an interest in, and seek to influence the outcome of the elections. Money is increasingly becoming a factor an electoral process where money was previously not a factor. For these and other reasons, the Society may need to rethink the physical balloting in favour of going back to postal balloting.

While there was keen political interest in the elections of the Society, the members themselves seemed to make their choices on the basis of the internal issues affecting their profession. The size of the legal profession is now very large, one of the largest in Africa, and is still growing. A few years ago, it was impossible to imagine what an unemployed lawyer would look like. Now it is not. There is now increasing unemployment in the legal profession, affecting particularly young lawyers, with those lucky to secure employment no longer guaranteed good terms of employment, a function of market forces.

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Because numbers have recently grown so rapidly, the age distribution in the profession is a veritable pyramid, with the youngest majority at the bottom while the oldest, often also the relatively well to do, alone at the top. Debate inside the legal profession is unresolved about what the future holds or should be made to hold: whether it is possible, or even desirable, to limit numbers.

In his new position, Njeru is now a leader in the legal profession. His personal credibility puts him in a good place to start addressing some of these problems.

- The writer is the Executive Director at KHRC. [email protected]

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Macharia NjeruTom OjiendaJudicial Service CommissionLaw Society of Kenya