Activist seeks to open legal practice to laymen, raids advocates pockets

Court Gavel. [File, Standard] You may opt to hire a layman or a non-qualified person to represent you or draft those documents or agreements in that commercial, family, or civil dispute if the High Court agrees with activist Isaac Alouchier's case. In his bid to turn up the legal practice on its legs, Alouchier argues that Sections 31 to 37 of the Advocates Act are illegal because they criminalise legal practice and dispute resolution services by non-advocates. Alouchier is of the view that the Constitution expressly provides for a right to be represented in a court of law by an advocate in criminal cases only. Nevertheless, he said, Kenya's supreme law is silent on whether a person requires a trained advocate in non-criminal cases, which include family, commercial, land, employment and civil ones. Alouchier also targets the law stipulating how much advocates earn to represent litigants. He said that Section 40 of the same law constitutes a barrier to non-advocates to recover the cost of the work done and, on the flip side, allegedly creates an unfair entitlement by advocates as it creates an economic shield allegedly in their favour. He argued that the drafters of the Constitution contemplated a free legal market for all, adding that only a small portion of the disputes end before a judge or a magistrate. "The Constitution expressly contemplates advocate representation within criminal proceedings under Article 50(2). It does not contemplate blanket criminal, administrative, or economic exclusion of non-advocates from non-criminal dispute-resolution or lawful non- contentious economic activity. To that extent, sections 31-37 and 40 of the Advocates Act exceed the constitutional contemplation required by Article 19(3)(c) and are void under Article 2(4)," argued Alouchier. The activist said that senior judicial leadership has publicly said that less than 20 per cent of the disputes are resolved through the formal court system. He added that the overwhelming majority of the cases, on the other hand, are dealt with through Alternative Dispute Resolution (ADR) mechanisms, administrative and informal means. Alouchier asserted that the Advocates Act had created a penal monopoly across the entire justice system, while in reality, the structural reality provided for by the Constitution allegedly contemplated a different thing. According to him, the law, on the other hand, allows non-legal professionals to sit in specialized tribunals and offer representation. He also argued that the Advocates Act is a pre-2010 Constitution legislation, but the three sections are not in conformity with it. Alouchier said that his case is not about criminal conduct or misrepresentation as an advocate. He claimed that the challenge was about an extension of criminal, administrative and economic exclusion of non- advocates beyond the confines set by the Constitution. He wants the court to declare that the Constitution expressly contemplates that a person should be represented by a trained advocate in a criminal case. On the flip side, he is also seeking a declaration that it does contemplate blanket criminal, administrative, or economic exclusion of non-advocates from non-criminal dispute resolution or lawful non-contentious monetary pursuits. He asserted that a comparative analysis demonstrates that advocate fees, which are provided for in the Advocates Remuneration Order (ARO), substantially exceed court filing fees. According to him, the barrier to justice is not the amount required to file a case, but the fees paid to an advocate. " In the absence of constitutionally mandated funding for representation in non-criminal matters, mandatory advocate-only participation operates as a financial barrier inconsistent with Article 48. The dominant economic barrier to justice under Article 48 is therefore advocate fees rather than court filing fees," he said. He told the court that sections 31, 33, and 34 of the Advocates Act criminalise participation by non-advocates, while sections 35 and 36 bar registrars and public officials from accepting or registering a document prepared by a non-advocate. Section 37, on the other hand, Alouchier further said, provides enforcement mechanisms to trace and punish non-advocates. According to him, so long as the exercise and or venture is not illegal or a crime, all should be allowed to participate as it is an economic activity. " I am not aware of any evidence demonstrating that truthful and non-misleading participation of non-advocates in constitutionally recognised dispute-resolution mechanisms inherently prejudices the rights of others. Fraudulent misrepresentation is already prohibited under law and is not defended in this petition," said the activist.

Activist seeks to open legal practice to laymen, raids advocates pockets

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