Restoring the image of the Law Society of Kenya (LSK) has become an urgent matter for candidates ahead of Thursday’s elections amid concerns that it has lost its voice in public matters.
Lawyers will elect the next council that will steer it between this year and 2022, when there is expected to be heightened debate on major legal and constitutional reforms driven by the Building Bridges Initiative (BBI).
The elections also come at a time when the Judiciary and Executive are at a standoff over the appointment of 41 judges and cuts to the Judiciary’s budget.
There were 10,764 lawyers with valid practice certificates as of December 31, 2019 and these are eligible to take part in the elections, which will be conducted by the Independent Electoral and Boundaries Commission.
In the campaigns, the priority agenda for most presidential candidates has been the restoration of LSK to its former glory, with criticism levelled against the outgoing council headed by Allen Gichuhi, and the one before headed by Isaac Okero, for “killing” the society.
Mr Gichuhi has denied the accusations. “ … together we did indeed moved mountains and fulfilled the spirit of Section 4 of the LSK Act’s jurisdictional aspirations in all spheres,” Mr Gichuhi said in his message to the society’s members.
The four candidates for president — Nelson Havi, Harriette Chiggai, Maria Mbeneka and Charles Kanjama — have plans to restore the image of the Society.
“I stand for a brave new bar,” Mr Havi proclaims in his campaign manifesto. “My promise is to restore the face of the bar and to remake the LSK,” says Ms Chiggai.
“We will strengthen the society,” says Ms Mbeneka. “I seek to work with lawyers to #TransformTogether our profession into a #StrongLSK,” says Mr Kanjama.
Reclaiming the society has become an urgent issue of concern for members as well as the public who feel that LSK has been infiltrated by the State.
“In the 1990s, the LSK was the voice of the people. When the council spoke, the Executive would think twice. The council contributed a lot to political pluralism and observance of the rule of law. Nowadays, nobody takes the council seriously. Many things happen in the public sphere that require the input of lawyers but nothing happens. In court, the council only reacts to cases filed by Okiya Omtatah. It can’t move on its own,” lawyer Peter Wanyama said.
Former LSK President Eric Mutua says prioritising a stronger LSK over other things is critical because the State seems to be clawing back at constitutional gains.
“Looking at what is happening now, you may have noted that NGOs (non-governmental organisations) have either folded or they are shying away from speaking truth to power. In terms of opposition, we have nothing. There is no debate, therefore, that we need a strong LSK,” he said.
Ms Faith Odhiambo, a candidate for the position of Nairobi representative, said restoring the image of LSK is a deciding factor on who to vote for.
“More and more advocates feel that we are not taking precedence in matters of the rule of law and Okiya Omtatah has taken up the space. Advocates want to see that when there are matters that need guidance then we are at the forefront,” said Ms Odhiambo.
“The Judiciary should not be the one to come out to complain with regards to matters affecting their operations. It is unheard of that the Chief Justice will come out to complain yet we have LSK. We feel that we need to take back that space and push the State to respect the rule of law,” she added.
Partisanship and council members holding brief for different political formations and other interests have left LSK divided on matters of public interest.
For instance, the 2017 presidential election petition and the May 2019 election for the LSK representative to the Judicial Service Commission (JSC) saw council members openly fight each other.
In the 2017 presidential election petition, then-council member Alex Gatundu swore an affidavit in support of President Uhuru Kenyatta and opposed LSK’s application to be admitted as a friend of the court in the petition filed by Raila Odinga and Kalonzo Musyoka.
As soon as the petition was determined, then-LSK vice-chairperson Faith Waigwa penned a letter to the Ethics and Anti-Corruption Commission (EACC) contradicting an earlier one by then-society president Okero in which he had faulted EACC’s intended investigation of Supreme Court Registrar Esther Nyaiyaki.
In the election for male representative to JSC, council members openly took sides between the two candidates — Macharia Njeru and Prof Tom Ojienda.
Mr Gichuhi has also denied accusations that the council has been doing less public-interest litigation, saying the society participated in more than 30 such cases since the start of 2018.