Lawyers’ fees far too costly for the vast majority

Chief Justice Willy Mutunga, who is president of the Supreme Court, and the first CJ under the new Constitution adopted in 2010. FILE PHOTO |

What you need to know:

  • Can all citizens of Kenya afford to pay for the so-called “due process”? The law says that every Kenyan is free to own a sinuous Mercedes Benz saloon.
  • A German cynic got it right when he quipped that, in his liberal country, the criminal had become the paymaster of both the police chief and the chief justice.

To ordinary human beings, a single green tree of real life is a million times more forthcoming than any hifalutin theory on it.

Yet our intellectuals never cease to throw to our faces an old hat of Western liberal theory called “equality before the law”. To the liberal’s mind, law remains a category completely independent of all social substrata.

That is why, in all liberal regimes – Kenya included – the educated and propertied elite poses every question of justice in a socio-economic vacuum.
All liberal constitutions speak loudly and with great pride about legal equality. But all are deeply silent on a question which is a hundred times more important to the mass:

Can all citizens of Kenya afford to pay for the so-called “due process”? The law says that every Kenyan is free to own a sinuous Mercedes Benz saloon.

But, of course, in terms of the wherewithal, this rubric of the law is completely useless to the vast majority of Kenyans. They just don’t have the money with which to enjoy that “freedom”.

Freedom is meaningful only when it is stated in terms of affordability. It borders on the criminal for anybody to flaunt astronomically expensive goods in front of paupers with the claim that the paupers are free to buy such commodities. Of course, the vast majority of Kenyans are not free to buy even a bicycle.

ATTEMPT TO SUE

Much more effective than the law, it is their poverty that bars them from buying even the cheapest cars. Similarly, everybody who has ever attempted to sue knows that justice is so prohibitively expensive that the man in the street just cannot think of going to court no matter how deeply he feels he has been wronged.

The shallow and torn conditions of their pockets are what permanently bar tens of millions of Kenyans from seeking redress through the official machinery. That is why it is so disturbing for Chief Justice Willy Mutunga to announce a 30 per cent increase on all the litigation and conveyance charges by lawyers. What can it mean?

Surely, this: For millions of Kenyans – those against whom the door of justice has been merely ajar for years – the Chief Justice has now completely and permanently slammed the door. The costs of other, much more urgent commodities – like food, medicine, clothing, children’s education, suchlike – have also recently soared towards their zenith.

But life must be lived. And, faced with that choice, human beings will sooner struggle to defray these providential costs than to bother with seeking justice through the Judiciary.

Of course, Kenya has multi-millionaires and even billionaires. These will continue to support litigation and defence and ensure that the due process is roaring.

But, in this way, the precincts of that system will have been tightly closed to all but the tiny minority who can afford the outlay. The upshot is that our Judiciary will have been reduced to a tool of the small financial oligarchy, and Wanjiku et al will have been permanently locked out of our vaunted machinery of justice.

PERPETUATION IN POWER

As many American intellectuals themselves have remarked, the US adjudication system is arranged in such a way that mutual perpetuation in power becomes the objective purpose of the three actors involved – the criminal organisation, the police inspectorate and the symbiosis of advocates and judicial officials.

Security is thus an extremely delicate but highly lucrative business of that same triumvirate. All three appear to consciously shield one another.

A German cynic got it right when he quipped that, in his liberal country, the criminal had become the paymaster of both the police chief and the chief justice.

But I think that Mr Mutunga should think twice before he adds another load on a country already reeling under the extreme burden of poverty.