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Lawyers have let us down by not distilling fully all BBI proposals

By Kamotho Waiganjo | December 5th 2020

Kenya’s discourse on social, political, legal or economic issues is amazingly predictable. Any issues that drive a wedge between the leading political factions colonises all critical media space, sucking all available oxygen and leaving other issues, however important, in the periphery of public discussion.

Pundits on TV, newspaper columnists and the political hacks all speak from the same script and Kenyans on social media follow suit in fairly foreseeable patterns. It is therefore not surprising that in the BBI debate it is the wedge issues in which the dominant political factions disagree that have so far defined public discourse.

Anyone landing here from Mars would imagine there are about 10 issues in the BBI. Unknown by many and only brought to the fore by the Linda Katiba team that is leading the No brigade, there are actually 78 amendments proposed through the BBI including such mundane ones as reverting to Minister from Cabinet Secretary to more serious ones like removing the institutional membership from the SRC.

What has amazed me is that even professionals like lawyers, who are expected to have internalised the entire BBI proposals and who are directly impacted by many of the lesser known proposed amendments, have hardly bothered to discuss the merits or otherwise of the non-political proposals.

Among the proposals that will impact lawyers and other professionals is the new power given to the SRC to determine the fees payable by government agencies for their services. Until this amendment, legal fees were determined by the Advocates Remuneration Order (which tends to be fairly generous to lawyers), contract and court assessment.

There have been rumblings in government about this arrangement and there was even an attempt to deal with it through the Attorney General’s Act. No doubt what informs this amendment is the colossal bills that government agencies are sometimes required to pay by lawyers, supported by the courts. So far, no squeak on this issue from my learned friends. Another amendment that affects lawyers is the requirement that lawyers and others who sit in the JSC are only entitled to one term and they are not allowed to practise during their tenure. That is only reasonable considering the powers that JSC members have in the employment, oversight and discipline over judicial officers, the latter being an addition to the JSC functions that has been introduced in the amendments.

The BBI has also adjusted the period in which a presidential petition is concluded, from 14 to 30 days. This has been a contentious issue and the Supreme Court has expressed frustration on the matter in the last two presidential election petitions. I would have expected a robust debate on this issue.

Lawyers who practise elections law will be interested to know that the BBI amendments also deny litigants the right of appeal to the Supreme Court on election matters. Until now the Supreme Court has acted like the final Court of Appeal on election matters overturning many of the decisions of the Court of Appeal especially those arising from the 2013 elections.

I would imagine that lawyers would have an interest in this matter considering that key constitutional questions arise in the course of election petitions whose final determination should ideally be the Supreme Court. Several other changes affect the qualifications of judges, the tenure of the DCJ and the President of the Court of Appeal among others.

While one accepts that advocates as citizens must be interested in all issues the BBI amendments are introducing, including the expansion of the size of Parliament and the Executive, I would have expected a robust debate on these legal profession bread and butter issues if only to guide the members and the citizenry on their merits or otherwise and thus inform people’s views on the looming plebiscite.

That these issues have been included in the BBI and lawyers have expressed no view either in support or in rejection or in asking for alterations, as others did successfully after BBI 2, is an indictment on the profession and its various leaderships. Spare me the brave new bar.  

-The writer is an advocate of the High Court of Kenya

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