Tom Ojienda asks Parliament to withdraw Finance bill

Lawyers have expressed outrage over the contents of Finance Bill, 2019, saying it should be withdrawn immediately as it will compromise their profession.

Tom Ojienda, a former member of the Judicial Service Commission, has written to Speakers Justin Muturi (National Assembly) and Kenneth Lusaka (Senate) seeking withdrawal of the bill that is to be considered by the two Houses.

In the petition dated June 18, Prof Ojienda says proposed amendments affect the practice of law and the traditional role of lawyers.

THE BILL

Through the bill, the State seeks to amend sections 48 of the Proceeds of Crime and Anti-Money Laundering Act to compel lawyers to report to authorities the cash they handle on behalf of their clients.

The bill published on June 13 seeks to designate lawyers, notaries and other independent legal professionals amongst reporting entities to whom rules on anti-money laundering and combating the financing of terrorism shall apply.

Currently, lawyers are protected from disclosing details of transactions or even money held on behalf of their clients, an avenue the corrupt and movers of illicit money are said to exploit.

A number of individuals and firms are said to have acquired proprieties through law firms in order to keep detectives away.

This may change if lawmakers pass the amendments to the law.

INDEPENDENCE

Prof Ojienda says in the petition that due to his past service in the legal profession, he is concerned about proposed amendments to sections 2 and 48 of the Proceeds of Crime and Anti-Money Laundering Act, 2009, that are contained in sections 48 and 49 of the bill.

“It violates Article 27 (1), (2) and (4), 31, 50 (2) (I) and (g) and 50 (4) of the Constitution, [threatens] to obliterate the Advocates Act and Chapter 16 of the Laws of Kenya and poses a real threat to the very existence of the legal profession as we know it,” he states in the letter copied to the Finance and Budget committee and the LSK.

Prof Ojienda further argues that the proposed amendments should be wholly shelved and withdrawn as they will have the negative effect of making advocates agents of the Directorate of Criminal Investigations and the Financial Reporting Centre and also offend the principle of advocate-client privilege.

"The proposed amendments are unnecessary in light of section 134 (1) (A) and (B) of the Evidence Act, Chapter 80 of the Laws of Kenya and section 18 of the Proceeds of Crime and Anti-Money Laundering Act, 2009."

The lawyer also notes that the proposals threaten and offend the independence of the legal profession in Kenya and will water down principles in the Advocates Act and render it a nullity.

He also says the proposals target and illegally discriminate against the legal profession contrary to article 27 of the Constitution.

“Any disclosure by an advocate in respect of his client must be subject to privilege and the duty of confidentiality as between him and his client, otherwise the disclosure is unconstitutional,” said the former LSK chairman.

CLIENT RIGHTS

James Mwamu, former President of the East Africa Law Society, said the “idea of saying we are going to have financial reporting will compromise clients rights.”

“We have enough institutions to investigate money laundering, corruption and theft, therefore the bill is most unwelcome and should be challenged in court,” Mr Mwamu said.

He also said that if approved, the bill will compromise the independence of the legal profession.

“We are going to be subjecting our clients' private arrangements to the public eye. Several things, including blackmailing and incriminating our clients, can be done using that information," he said.

“However, that is not to say we support money laundering. We feel there is a sufficient mechanism to deal with issues of theft and money laundering."

The Law Society of Kenya's President Allen Gichuhi told the Nation that they would submit a comprehensive memorandum to Parliament after the bill's publication.

“We are receiving members' views and are happy [so far]," he said on Tuesday, adding the society had drafted anti-money laundering guidelines.