Several cases of identity theft and misrepresentation, identity theft and fraud alert us the legal profession is gradually deteriorating.
As renowned legal scholar Prof Gutto is memorialised in South Africa this weekend, we are also reminded that without ethical professionalism and legal excellence, we risk the very foundation of a just nation.
The arrest and prosecution of Brian Mwenda on the timely directions of the Director of Public Prosecutions attracted public attention. At least four other cases of unqualified men and women alleged to be masquerading as dead advocates or senior partners are also underway.
Since Covid-19, judicial system digitisation has introduced new ways of case filing, evidence and witness protection, online case hearings and e-notifications. These new efficiencies have greatly improved the experience of courts and access to justice for millions. Unfortunately, limited human interaction also brought new threats. By misrepresenting clients in e-court rooms or behind cybercafé computers, wannabe lawyers are now manipulating the anonymity of court processes and business service digitisation.
While the Advocate’s Act is clear on misrepresentation, it is also woefully inadequate. Part 5 sets clear quality service standards and expressly prohibits unqualified persons from acting as advocates.
Breaching these standards as an individual invites a maximum fine of Sh50,000 or jail time of up to two years, or both. Corporate directors or their representatives attract fines of Sh25,000 only. In recent cases where imposters are collecting hundreds of millions in conveyancing work, neither the fines proscribed, nor the jail time, are deterrents anymore.
The old adage “why hire a lawyer, if you can buy a judge” seems simplistic. Anecdotes of how the corrupt buy court clerks, court reporters, witnesses, investigators, prosecutors, and the judge are numerous.
Known for disregarding procedural rules, prolonging cases, interfering with witnesses, evidence, and the investigators, the aggressive, no holds barred gladiator lawyer is glorified. The more self-centred, arrogant and lack of ethical self-control, the better for some. It’s time that citizens, the Law Society of Kenya, and the state leans in before the profession is overrun. Clients must vet their lawyers’ photos, details, and credentials on the LSK portal. Perhaps, legislators can review current penalties within the Advocates Act.
In this current context, the last 48 years of Prof Shadrack Gutto’s contribution to ethical professionalism a is even more distinctive. By the time the 72-year-old Kenyan scholar passed away in South Africa on 13th October, he was already an icon.
As University of Law lecturer (1978-1982), he shaped the constitutional jurisprudence of Chief Justice Emeritus David Maraga, Justices Smokin Wanjala, Roselyn Nambuye and Mohamed Ibrahim, current and former Attorney General’s JB Muturi and Githu Muigai, current and former National Assembly speaker Moses Wetang’ula and Francis ole Kaparo, former Makueni Governor Dr Kivutha Kibwana and former CBK chair Mohamed Nyaoga among others.
Forced into exile for his activism against the one-party state, he continued to remotely organise Kenyans towards the second liberation. He also developed progressive legal jurisprudence in Austria, England, Sweden, Zimbabwe before settling in South Africa. For the last three decades, he has chaired several South Africa’s university law faculties, prolifically published on constitutionalism, democracy and land reform and helped draft laws to reduce landlessness and land inequalities.
NEPAD, African Union, Amnesty International and United Nations, International Council of Justice among others also sought his counsel to protect refugee rights, land reform and the African Renaissance.
Gutto actively shaped associations of lawyers wherever he was. He understood, unlike so many lawyers today, that the law finds fullest expression in voluntary service. Rather than a tool of the educated, privileged, and powerful, the law must empower the vulnerable.
While his death has barely made Kenyan news and his students have yet to organise a befitting memorial, his contribution to legal jurisprudence and some of the sharpest legal minds in Kenya is undoubtedly. His life is evidence that integrity and competence is possible. We must now demand both from all our professionals. Go well Senior Counsel.