The changing face of the legal profession

The homegrown legal profession in Kenya is only 50 years old. Kenya School of Law was established in 1963 and the late John Gachuhi — who rose to become a Court of Appeal Judge — was its first graduate when he was enrolled as an Advocate in 1968.

The University of Nairobi set up a law faculty in 1967 until which time most Kenyans undertook their legal training in Dar es Salaam and the fortunate ones trained in England and India.

Initially, the School of Law allowed “O” Level students to join the five-year training as articles — very much akin to the prevailing solicitors’ course in England.

The legal education system has matured considerably with the proliferation of law faculties in Kenyan universities and it is estimated that about 500 advocates will be enrolled annually in Kenya.

The legal profession — comprising lawyers in active practice, the subordinate court magistracy, the High Court, Court of Appeal and Supreme Court Judges, the prosecutors and those employed in private practice sector including MPs has greatly benefitted from the new Constitution with hundreds of job opportunities having been created.

All the facets of the legal profession have changed but the evolvement of the profession post enactment of the Constitution has, is and will change the conventional perception of the profession.

It is gratifying to note that Kenya no longer relies on legal training from other Commonwealth countries notably England and India.

The local universities have now begun to produce high-level candidates all studying Kenyan law and jurisprudence backed by a developing and effective law reporting system.

As Kenya edges towards having about 10,000 lawyers in the country, serving about 40 million Kenyans meaning one lawyer serves about 4,000 Kenyans, the demand for lawyers and the challenges facing lawyers are ever changing so fast.

Boring and undramatic

Practitioners are now embarking on specialisation and the days of general practitioners are numbered. Fields such as international law, environment, mining, company law, intellectual property law and the voluminous churning out of laws every month entails a different approach to the practice of law.

With new land laws, discovery of oil, coal, gold and the new port in Lamu and the opening up of the northern part of the country to commerce, the future of lawyers appears bright.

The arm dealing with litigation — which includes members of the Judiciary, advocates and prosecutors — has procedurally changed.

New procedures are already in place where litigants — in civil and criminal matters, plaintiffs, defendants, prosecutors and accused persons — have to set up their cases upfront by filing with the court their list of witnesses and list of documents. In criminal matters prosecutors are obligated to give an accused the statements of witnesses upfront with copies of all documents.

Sadly, the art or challenge or science of advocacy is fast disappearing. Courts have begun to gag advocates by giving them time limits, limitations and other constraints and the fast developing practice of written submissions at every application and contentious step of the trial has led to court matters becoming boring and undramatic.

This is the time of technology, the era of cut and paste, research by Wikipedia, disregard for copyright laws and the young breed of lawyers is producing written submissions at a pace and volume where the conventional court file now can run into hundreds of pages — a logistical nightmare of storage!

Advertising was a legal taboo in the legal profession but now Advocates can advertise in the newspapers and the media and on the Internet and websites.

The role of the Law Society of Kenya is shifting and the society has begun rightly or wrongly, to manifest itself in public litigation matters.

The control of the legal profession and of the erring rogue and wayward lawyer remains unclear at best. The Disciplinary Committee which is viewed by the public with disdain and as an unwilling accomplice to the rogue lawyer is set to become a Tribunal.

The Advocates Complaints Commission — a body under the Attorney General — has over 18,000 pending complaints in its docket. What does all this project for the legal profession?

Soon all prosecutions will be carried out by the lawyers and not policemen — a welcome change which will strengthen the branch of law enforcement setting an equal playing field for prosecutors and defence lawyers.

Disrespect for seniority

The two-tier regime of practicing Advocates is slowly developing through the Senior Counsel scheme akin to the Queen’s Counsel but there are no clear-cut traditions or rules as to how this scheme works.

In the Judiciary, the biggest — and perhaps the saddest — change is the total disregard to the age-old respect for seniority in appointments and promotions.

Experienced and extremely senior judges with unimpeachable records are being passed over without regard to merit but on inexplicable grounds such as ethnicity or tribal balances which have no place in the law.

The setting up of the specialised courts to deal with labour matters, environment and in particular land matters will inevitably change the face of the legal profession as much as the proposed new marriage laws.

Perhaps it is time to raise the glasses and toast to, yes, the change for the better in the legal profession!