With just 9,000 electors, Wednesday’s Law Society of Kenya (LSK) elections would have passed largely unnoticed if not for the role the society plays in the administration of justice.
For this key role, LSK hardly escapes the attention of politicians interested in influencing the outcome of its elections so that they can have individuals who will serve their interests.
“You cannot separate LSK elections from the national politics because LSK is a statutory body and it discharges public functions, one of which is oversight,” lawyer George Kithi says.
According to Mr Kithi, the society becomes attractive to politicians because whatever it says influences public policy, one of which is the appointment of judges including the Chief Justice and magistrates.
The LSK has two representatives in the JSC, namely Prof Tom Ojienda and Mercy Deche, and has membership in Parliament and other places of influence.
“Therefore, the position it takes goes a long way to influence how people behave. The government would want to have someone who is friendly, and the same for the opposition,” Mr Kithi said.
The LSK has cleared 37 candidates who will be battling for the available 16 positions in the council, the society’s governing body, and the Advocates Disciplinary Tribunal.
The positions of president and vice president have attracted two candidates each, with Kisumu-based lawyer and former president of East African Law Society James Mwamu facing off with city-based lawyer Allen Waiyaki Gichuhi for president.
Lawyers Harriette Chiggai and Joy Brenda Masinde will square it out for vice president slot.
“The register of members eligible to vote contains the names of 9,009 members with 2017 Practising Certificate as at December 31, 2017,” the guidelines and polling for the LSK Council and Disciplinary Tribunal elections sent out to members reads.
In the elections that will be overseen by the Independent Electoral and Boundaries Commission (IEBC), LSK has also adopted an electronic register, the LSK Voter Centralised Identification System, for identification of voters.
The LSK has designated 28 court buildings across the country as polling centres and “electors can vote from any of [the] centres regardless of where they are based”.
“At the close of the polling station, the presiding officer (PO) will scan the image of the results declaration form and electronically transmit the same to the tallying centre at the Law Society of Kenya Secretariat in Lavington, opposite Valley Arcade, Gitanga Road, Nairobi, and subsequently deliver to the returning officer (RO) the original form,” the guidelines state.
But the Wednesday, February 22, polls will have an added flavour to it.
For the position of president, it will be a rematch from two years ago when both Mr Mwamu and Mr Gichuhi were the losing candidates for president.
Then, Mr Mwamu garnered 1,378 votes, just seven more than Mr Gichuhi who was ranked third.
Current president Isaac Okero obtained 1,581 votes. The LSK Act however bars him from seeking a second term.
“Both candidates are very good. Having served with both of them in the LSK Council when I was president of the Society, I can say each of them brings on board peculiar strengths. Any of them can be a very good president of the law society,” Mr Eric Mutua said of Mr Mwamu and Mr Gichuhi.
HAVI LOCKED OUT
Mr Mwamu and Mr Gichuhi found themselves in a two-horse race after lawyer Nelson Havi was locked out by the LSK Council and subsequently by the High Court because he did not have the required 15 years’ experience.
He has since appealed the High Court ruling and the matter is still pending for determination.
Former nominated MP Judith Sijeny, who was also eyeing the president’s position, also withdrew.
For Mr Mwamu, this will be his third attempt at the presidency, having run and lost to former LSK president Kenneth Akide in 2010 and again lost to Mr Okero in 2016.
Mr Gichuhi, meanwhile, will be making a second attempt.
But that is as far as the fun part of the race go because LSK has lately become captive to national and ethnic politics that have permeated to the top levels of the society.
The current council has been beleaguered by constant squabbles among members as the Nasa-Jubilee politics eats into the premier bar association.
The latest of such political disharmony has seen what was billed as a “multipronged strategy” to protest the Executive’s growing disregard of court orders and rule of law peter out, leaving only yellow ribbons as the visible component of the strategy.
The LSK had last week announced a week-long court boycott, except for matters related to election petitions.
Multiple conversations with lawyers have revealed that as soon as the notification went out, a section of lawyers started scheming to scuttle the proposed boycotts and accused some council members of using the LSK to propagate Nasa’s agenda.
Eventually, LSK sent out another e-mail to members on Sunday evening communicating the cancellation of the planned court boycotts.
Meanwhile, last year’s presidential election petition left a deeply divided council, with some supporting the Jubilee wing and others the Nasa side.
Council member Alex Gatundu swore an affidavit in support of President Uhuru Kenyatta opposing LSK’s application to be admitted as an amicus curiae (friend of the court) in the petition that was filed by Nasa leaders Raila Odinga and Kalonzo Musyoka.
Soon after that, LSK vice chairperson Faith Waigwa on October 5 penned a letter to EACC chairman Eliud Wabukala contradicting an earlier one by Mr Okero in which the president had faulted EACC’s intended probe on Supreme Court Registrar Esther Nyaiyaki.
As the political and ethnic divisions played out in the public, two separate motions for removal of the council have been filed.
The filing of the petitions was partly blamed for the cancellation of the society’s special general meeting (SGM) that had been scheduled to take place on November 11, 2017, at the Hilton Hotel, Nairobi, to adopt the regulations in line with the new LSK Act.
“I will be very frank. The current LSK Council has a problem and that has to do with a lot of partiality and ethnic-biased approach.
"Some of them have even taken party positions and have been campaigning for political parties.
"Because of that, the president speaks one language and the deputy speaks a different language.
"As a result, the oversight role of LSK has seriously been compromised. It is a total failure and antithetical to the public’s expectations.
"It is basically a seesaw between the president and vice president, which is very disappointing.
"I think this is the worst legal term that we have had in LSK so far.
"The fact that one belongs to a tribe, when you get to such a position you must completely be neutral and beholden to fidelity of law, which unfortunately has not been there. It has been more of the ethnic inclination,” Mr Kithi said.
The intrusion of national politics into LSK affairs is not something the society can run away from.
Some lawyers told Sunday Nation that only a minority of the members will not be swayed by their ethnic and political affiliations as they vote on Wednesday.
With constitutional commissions and independent offices that would have offered the necessary checks and balances being progressively silenced, and a similar crack down on the civil society and the media, LSK would have remained the only alternative voice.
This makes the Society’s Wednesday election the more important to the Executive to ensure people who will play ball carry the day.
The campaign period has not been short of such manoeuvres as individuals linked to senior Jubilee figures have been sponsoring campaign meetings for some of the candidates.
“The problem is that there are those seats that are more attractive than others, especially the president and the deputy.
"Because of that, they are highly competitive.
"The temptation to put out a well-oiled machinery is always there and people, therefore, apart from their own resources source for funds inevitably from politicians who would want to derive a benefit after their preferred candidates have won.”
The lawyer said that a person would ordinarily be supported first, because of one’s tribe and second, because of what one represents politically.
“In our current setup, it would basically be an ODM and Jubilee affair and it will become more pronounced as we get nearer to the voting day,” Mr Kithi added.