Spotlight needs to shine on lawyers, too

By Pravin Bowry

The justice system does not comprise only of Judiciary.  Other main players are the claimants (called the plaintiffs or applicants or petitioners) and their legal representative in civil cases.

The accused or their advocates in criminal cases and appeals, the prosecutors and the investigators (mainly the police) prison department and probation officers are all an integral part of the system.

Lawyer’s in the AG’s office and now DPP’s office, called state counsels, deal with matters mainly centering their work in the High Court.

The conduct of all these players collectively determines the efficacy of the machinery of administration of justice.

Some stark realities

While we have seen great public debate on judicial officers, it is important to address the failing role of other actors and in particular the lawyers who represent various parties in different capacities.

The standards, ethics and etiquette of advocates leaves a lot to be desired and the 7,000-strong members of the Law Society of Kenyamust brace themselves for microscopic scrutiny.

The Chief Justice, the Attorney General and the DPP and the Law Society must awaken to the reality that lawyers too, need to be subjected to the law. Some stark realities must be outlined.

There is the Advocates Complaints Commission managed in the AG’s chambers.

The Commission is constituted under the Advocates Act which has powers to investigate complaints, reconcile parties and refer complaints to the in-house Law Society Disciplinary Committee and prosecute cases in the Disciplinary Committee.

This process has in reality been ineffective and hundreds of errant advocates get away with professional misconduct including criminal activities.

The number of complaints received from January 1 to June 30 in the Complaints Commission was 605.  It is believed that some advocates have over 100 complaints against them!

Since 2006 Kenya Anti-Corruption Commission has received 1,377 complaints against advocates with 227 complaints having been referred to this year.

Additionally, the Registrar of the High Court is aware of hundreds of cases of advocates giving post-dated cheques, a criminal offence now under the Penal Code.  There are reliable reports that many advocates are engaged in schemes of evading payment of court fees.

The recent electronic collection of court fees has revealed cartels of advocates forging court documents to pay reduced court fees. 

Since introduction of the new system collection of court fees has increased tremendously. 

Citizens would feel gratified if these errant advocates were brought to the book for matters, which are clearly criminal.

Remove this shield

There are corroborated reports that many advocates and their paralegal staff are involved in various corrupt practices involving the Land office, the companies registry and the court registries.

High level deals of money laundering are said to be centered around some powerful lawyers.

The role of some prominent firms of advocates and advocates at large in condoning and furthering corrupt practices must be a concern for the Law Society, which must address the conduct of its members more aggressively.

Like the MPs, and judges, advocates must comply with the law. It is a little disconcerting to note that the ETR system under VAT laws is not applicable to advocates because the almost ten-year-old injunction obtained, I believe at the behest of the Law Society, is still in force.

Similarly, City Council licensing laws are subject to an injunction.  It is incumbent upon the Law Society to finalise all the pending litigation it is involved in.

The conflicting dispute resolution methods when advocates are involved need urgent streamlining.  There is a good case for the Complaints Commission and the Disciplinary Committee to be merged.

Criminality on the part of lawyers should not be shielded by the law, or other organs of law enforcement agencies.

There is a class of lawyers employed in the state law offices, parastatals and pirate companies who must also be subjected to the law and some of them have conflicting interests and operate without practicing certificates.

—The writer is an Assistant Director with KACC.

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