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ELECTION 2022

Legal profession at crossroads

PRAVIN BOWRY
By Pravin Bowry | Nov 18th 2015 | 3 min read

The legal profession - advocates, the judiciary, Attorney General’s Chambers, Office of the Director of Public Prosecutions, lecturers and students - is at crossroads.

They are guilty of total disregard for and lack of national values and principles of good governance. All lawyers must become members of the Law Society of Kenya which, paradoxically, is in total disarray and unless the impasse is resolved soon, will come to a standstill.

There have been constant wrangles within the society aggravated recently by the envisaged construction of an arbitration centre.

The construction of the centre, estimated to cost a colossal Sh1.2 billion, intended to be financed by all members contributing a mandatory Sh40,000, has led to two failed Annual General Meetings of the society in circumstances that can be described as a national disgrace.

Allegations of lack of accountability and transparency in the society’s leadership have led to a court case. The last failed meeting saw a distasteful outburst on television.

There is also a dispute relating to the appointment of the CEO already in court with allegations of manipulating the society’s forthcoming elections.

It has been alleged that the additional requirement in the advertisement for the position is aimed at locking out candidates who are otherwise eligible for the position. The practicing advocates are always in the limelight for the wrong reasons.

There is an Advocate’s Complaints Commission established under the Advocates Act, which is under the Attorney General’s docket. There is also a Disciplinary Committee established under the Law Society Act. These two comprise the disciplinary machinery in the legal profession.

The conduct of the practicing advocates is most disturbing.  The Advocates Complaints Commission receives on average 850 grave complaints every year against advocates, 72 per cent of which are rejected.

The remaining 28 per cent is forwarded to the Disciplinary Committee after the complaint is found to raise serious misconduct issues. Out of the 28 per cent, only about 14 per cent of the complaints go the full course resulting in disciplinary consequences.

The recent allegations in high legal quarters of advocates being conduits of corruption in courts and other registries and offices are also disturbing.

The Judicial Service Commission (JSC) has also had its share of profound problems touching on impropriety, integrity, morality and misconduct, which are in public domain. It is fair to state that JSC as a legal entity is in dire need of reconstitution.

The judiciary, and more specifically judges and magistrates, have not been left behind in lack of professional, ethical and moral requirements. Only last week a magistrate in Kisumu was charged with robbery with violence. The magistrate allegedly stole Sh 10,000 and a mobile phone worth Sh 5,000.

Another magistrate and clerk were also recently arrested by the anti-graft agency at the Kericho Courts after allegedly being caught with Sh10,000 each.

The Chief Justice last week stated that the fight against corruption in the judiciary has been taken a notch higher and that the JSC would not hesitate to take disciplinary action against judicial officers and administrative staff who engage in corruption.

The transition from police prosecutors to professionals under the Office of the Director of Public Prosecutions has been a nightmare. Adjournments have regrettably become the order of the day.

The lack of preparation by prosecutors is evident and embarrassing. Adjournments are regrettably the order of the day in the criminal division where time is of the essence.

An accused’s right to a speedy and fair trial is casually compromised.

The Attorney General who is in charge of several registries, including the companies and societies registries, needs to devise ways to ensure that these registries are operated in a manner that is more efficient.

The Attorney General, who actively participates in the drafting and publishing of new laws, has to some extent failed in his duties.

In recent times, more than a dozen laws have been passed only to be amended soon after their enactment mainly due to drafting blunders.

Settlement of civil cases and backlog of cases in which the Government is a party is of great concern to the business community.

And let us not forget the lawyers in Parliament who are doing a below par service with hundreds of obvious errors in statutes going unnoticed.

There is a case established for the entire legal fraternity to go on a journey of self-examination and find solutions but when that will happen and who will take the initiative remains the question.

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