Has the Law Society of Kenya lost the fangs to fight for Wanjiku?

This week, Mr Nelson Havi, president of the Law Society of Kenya, responds to your questions.

1. Since the President has declared a constitutional moment in Kenya, who should own that moment? Is it he and Raila Odinga or BBI? Is LSK able to agitate for an all-inclusive broad-based movement to steward the constitutional moment and also take the lead in midwifing the appropriate amendments to the Constitution? Ann Njoki Njung’e, Limuru

Our Constitution is the most transformative and people-centred. However, Kenya has not progressed democratically and there is a need for change. Will change come through constitutional reform or full implementation of the current Constitution? President Kenyatta and former Prime Minister Odinga ought to have subjected their quest for reform to the people through a constitutional review process and a representative conference. BBI falls short of this requirement. There is no need to amend the Constitution which has not been fully implemented and at the behest of leaders who do not respect it in the first place. LSK will inform Kenyans whether or not the Constitution should be amended after reviewing the proposed amendments.

2. The involvement of the Executive in the appointment of members of constitutional commissions and independent offices is a major drawback for the independence of these offices. For example, we are seeing the heavy influence of the Executive in the recruitment of the Auditor-General. Allowing the executive to take the leading role in the appointment of the selection panels is a major deficiency that calls on LSK to act. Why can't LSK move to the Supreme Court to seek an advisory opinion so as to insulate the independent institutions from external interference through appointment of 'Executive's candidates'? Njoroge Waweru, Kikuyu

There is nothing wrong in the Executive’s role in the appointment of members of constitutional commissions and independent offices. The problem is corruption, cronyism and nepotism in appointments and approval by Parliament. An Executive and a Parliament free of these vices is the solution. Kenyans must make good decisions on the ballot. LSK will challenge skewed appointments but the people of Kenya must play their role well at the polls. Bad choices have catastrophic consequences.

3. The judiciary has lately been encouraging parties to refer their cases for arbitration and other alternative dispute resolution (ADR) mechanisms to reduce pressure on courts. However, I have checked and discovered that there are no clear policy regulations and legal framework to govern this approach. What is the society and Judiciary doing to sensitise lawyers and members of the public on this? Dan Murugu, Nakuru

Alternative dispute resolution (ADR) is anchored in the Constitution and Acts of Parliament. LSK has set up an ADR Committee under the able leadership of Ms Carolyne Mutheu to sensitise advocates and the public on the benefits of ADR. For its part, the Judiciary has implemented a policy of referring disputes that are not hotly contested to ADR. We encourage advocates and the public to embrace ADR, and treat decisions made through the process with the same authority and respect they would court judgments for ADR to succeed.

4. Since last year lawyers have participated in two elections to elect the LSK male representative to serve in the Judicial Service Commission and new officials of the society. In the first one, there was open and massive State interference to sway the outcome of the exercise in favour of a particular candidate it was supporting to take care of its interests in the Judiciary. In the second one, it was not very clear if there was an attempt by the State to interfere in the elections of the LSK Council. How big a challenge has the State’s attempts to influence LSK processes, including elections, become? Considering the fact both JSC and LSK must be left to operate independent of State interference, what does such external interference mean to the future of the two institutions? Dan Murugu, Nakuru

The Executive had a candidate for LSK president.

The candidate did not win because advocates needed change and turned out in large numbers to demonstrate their dissatisfaction with attempts to continue controlling the LSK.

These attempts continue through coercion and comprise Council members, sabotage of the Society’s work through the Executive’s agents in the membership of LSK and lately, threats to my work and life. Advocates must resist the Executive’s interference in the affairs of LSK and call out these bottom-feeding trolls. LSK should never again be a department of the Executive as it was in the four years preceding my election.

5. Sir, I want to refer to the case of Imperial Bank that went down with clients’ Sh80 billion. It is five years now, and cases against fraudsters and directors of the bank seem to have stalled. Sometimes back, ODPP Noordin Haji had said, in this very column, that this case “is of high importance and of public interest.” He further said that “we are not only pursuing directors and the management but also CBK officials who allowed this to happen.” Now, five years is a long time for depositors to suffer. As the president of the Law Society of Kenya, could you please advise what investors and depositors can do to get justice and their money? Mahendra Shah, Nairobi

The Central Bank of Kenya (CBK) shoulders the blame for losses by depositors of Imperial Bank and other banks. The criminal prosecution of those allegedly liable in the case of Imperial became meaningless when it was used to persecute innocent customers of the bank. Investors and depositors should pursue civil action against CBK. LSK has many advocates capable of delivering required results.

6. We had not before witnessed a saga as this one surrounding the conferment of the rank of senior counsel. What is really going on? Githuku Mungai, Nairobi

Nepotism and cronyism were the bane of the conferment of the rank of senior counsel in 2019. There was also bias and favouritism by three judges who participated in the recommendation process.

Some advocates with known deplorable records in human rights violations and others whose only memory of a courtroom is the day of their admission to the bar made it to the list. How can that happen? Senior counsel is a title of honour. It should not be given to conceal or reward mediocrity. LSK will not countenance such a process. The Senior Counsel Committee of Ahmednasir Abdullahi, Prof Kameri Mbote, Nzamba Kitonga, Prof Tom Ojienda and Joyce Majiwa will deal with future conferment.

7. A report by a task force chaired by lawyer Fred Ojiambo released in 2017 showed that from 2009 to 2016 only 7,530 out of 16,086 students passed their bar exams while 8,549 failed. That is a failure rate of 53 per cent. What are you doing to address the myriad problems in legal education and to establish and address the worrying trend of mass failure by students sitting bar examinations at the Kenya School of Law? Raphael Obonyo, Nairobi

Everybody wants to be a lawyer but few want to study and prepare adequately to be good lawyers. This is the first problem and it is caused by the low pass marks for admission to study law. Second is the commercialisation of the teaching of law.

Today, law lecturers are overwhelmed doing everything, everywhere to earn a living, paying little attention to teaching. LSK has recommended an increase in the pass mark and the dilution of the monopoly of the Kenya School of Law in the final training of lawyers. There is also a need to remunerate law lecturers better [so they can] concentrate on teaching.

8. For a while now the Executive seems to be giving court orders a wide berth. For instance, in February a court ruled that the 41 persons nominated for appointment as judges be gazetted and sworn in without any further delay. This to date has not been obeyed as are many others. What is your office doing to ensure the order is enforced to reduce cases backlog?  Benard Chetambe Lipesa, Nairobi

LSK has commenced the removal of Attorney-General Paul Kariuki Kihara and Solicitor-General Kennedy Nyabuti Ogeto for misadvising President Kenyatta not to swear in the 41 nominees for appointment as judges. We call upon advocates and Kenyans to support this initiative.

We also plead with the international community, international lenders and donors (World Bank and IMF) to reconsider foreign aid and loans to Kenya as a way of putting pressure on the government of Kenya to act lawfully.

Lastly, we plead with President Kenyatta to run away from his bad advisers and swear in the 41 judges. History will judge him adversely if he doesn’t.

9. What is your take on delays in dispensing justice in our courts? Most cases stay for long before determination is made. Andrew Okulo, Nairobi

We have a shortage of courtrooms, judges and magistrates. Parliament should increase the budget for the Judiciary and the Executive should stop interfering with the same. It is that simple!

10. Sir, this country changed because lawyers came out forcefully to tell our President Daniel arap Moi that he was leading the country in the wrong direction. However, the Law Society of Kenya of today seems to have lost the fangs to fight for Wanjiku. We do not want to see you become an activist but rather come out strongly in the defence of the constitution and the rule of law and tell the king that he is naked. What would it take for you to take up this challenge? David M. Kigo, Nairobi

The Law Society of Kenya regained its glory with our election in February, 2020. We took up this challenge and undertook to serve diligently and gallantly. We pray for God’s guidance and providence to delivery this mandate for the benefit of Advocates and the Kenyan public as did those who came before us during the time of the late President Daniel Arap Moi: Paul Muite, Dr Will Mutunga and Dr Gibson Kamau Kuria to mention but a few.