LSK cancels senior counsel honour for Kalonzo, Karua, calls for review

The Law Society of Kenya has nullified the nomination of 24 lawyers to be conferred the rank of senior counsel, among them former Vice President Kalonzo Musyoka and former Justice Minister Martha Karua.

The drastic decision by the new LSK council comes almost a year after the Committee on Senior Counsel chaired by Supreme Court judge Justice Mohamed Ibrahim completed the process of identifying the 24. The committee submitted its report on August 26, 2019.

But the outcome of the committee’s work had been met with consternation and anger from a section of lawyers who felt the process was unfair. Nairobi lawyer Donald Kipkorir faulted the committee for overlooking gender and regional balance, and allegedly favouring criminal lawyers over commercial litigators in the final shortlist.

Mr Kipkorir had also questioned the committee’s decision to go against the tradition of conferring the title to sitting Attorney-Generals, Directors of Public Prosecutions and LSK Presidents.

Besides Mr Kipkorir’s grievances over the nominations, the new LSK council chaired by Nelson Havi, in a letter to lawyers, said there had also been contention over the composition of the committee and the impartiality of its members in particular, the three judges who were members.

The judges in the committee were Justice Ibrahim, Justice Martha Koome, representing the Court of Appeal, and Justice Jacqueline Kamau, representing the High Court

“Concerns were and continue to be raised on the validity of the Advocates (Senior Counsel Conferment and Privileges) Rules, 2011. The rules are indicated to have been amended twice in 2012 and 2014 without public participation. All these issues impact negatively on the process of recommendation for conferment made in 2019 and intended to be made in 2020, a call for applications in respect of which was made to members on February 24, 2020,” Mr Havi stated in the letter.

The decision to revoke the nominations was taken at a LSK council meeting held on May 11. “It was resolved that the decision of the committee made on August 26, 2019, be set aside. The recommendation for conferment of the 24 advocates was, therefore, revoked. The applications for 2019 shall be considered together with those made in 2020,” said Mr Havi.

Going forward, LSK now wants legal opinions to be sought from three advocates appointed by the council, two of who are Senior Counsel, on what changes should be made in the rules to guarantee fairness and integrity of the process.

“We undertake to ensure that henceforth, the conferment process meets the requirements of Section 7 of the Advocates Act, The Constitution of Kenya and best practice in the Commonwealth. The process should be fair and transparent. Recommendations must be made upon identifying excellency in applicants through meritocracy in a rigorous and objective exercise,” said Mr Havi.

Besides Mr Musyoka and Ms Karua, the committee had also nominated former DPP Philip Murgor, deputy DPP Dorcas Oduor, renowned family lawyer Judy Thongori, the former chief executive of the Kenya National Human Rights Commission (KNHCR) Patricia Nyaundi, lawyer Kioko Kilikumi, renowned arbitrator John Ohaga, Rautta Athiambo, veteran lawyer Fred Ngatia, Wilfred Nderitu, who is remembered for having represented victims at the International Criminal Court (ICC) in the case against Deputy President William Ruto, Prof Albert Mumma, Pravin Bowry, the former Assistant Director (Legal Services) of the Kenya Anti-Corruption Commission (KACC), and John Chigiti.

Others were Pakash Nagpal, Fackson Kagwe, Waweru Gatonye, Mohammed Nyaoga, Beauttah Siganga, Kiragu Kimani, Taib Ali Taib, Zehrabanu Janmohamed, Abdikadir Mohamed and Rarieda MP Otiende Amollo.

Before the 2019 selections which now stand nullified, there had been a seven-year gap since anyone was conferred the title of senior counsel. The last time the title was conferred was in 2012.

Already, the decision of the LSK council has infuriated some of the 2019 nominees. Mr Murgor took to social media to make known his displeasure at the decision.

According to Mr Murgor, LSK as a party to the Judicial Review case petition number 300 of 2019 should “not act to the prejudice of opposing parties, observe rules of sub judice, and avoid conflict of interest” by Mr Havi.

There have also been questions as to whether LSK has powers to revoke the nominations. “Strictly speaking, it may not. However, if one’s professional body says that one is keen to acquire a professional status fraudulently and that they will not recognise or accord you that honour, then it matters. The council acts and represents all advocates. Senior Counsel operates within LSK which is managed by council,” a lawyer who spoke on condition of anonymity because of his past position in LSK, said.

The title of senior counsel is conferred on eminent lawyers and is considered the zenith of professional achievement for having irreproachable professional lives. It is similar to the Queen’s Counsel in Great Britain.

The privileges enjoyed by such a lawyer is not clearly stated. In fact, The Advocates (Senior Counsel Conferment And Privileges) Rules, 2011 states that besides one using the designation of Senior Counsel or its abbreviation, SC, any other privileges have been left to LSK Council to determine.