Blow to lords of impunity in Judiciary

The presidential directive on Jamhuri Day dealt a mortal blow to the lords of impunity suffocating the Judiciary and delivery of justice.

President Uhuru Kenyatta directed the State Law Office to fast-track a law to reign in state and public officers insisting on earning a monthly public payslip and yet run private businesses at the same time.

“All public and state officers must decide to serve the public in private or public capacities but not both at the same time,” said President Kenyatta.

For scholars of contemporary Kenya history, the directive is a stinging indictment on the past and current leadership of the Law Society of Kenya (LSK), Judicial Service Commission (JSC) and law schools that it is State House that is leading the way in advancing jurisprudence and not the legal profession.

The bottom line is, rogue lawyers and their institutions, on their own, failed to protect the public interest inherent in the principles of separation of powers and now have to be compelled by a law inspired by the Executive.

GRAFT CARTELS

Instead of proactively honouring, protecting and shielding them from violation, lawyers instead violated principles of separation of powers with impunity.

Among the top-ranking members of this impunity club feature prominent lawyers who draw salaries as Members of the National Assembly or the Senate but also insist on appearing in court to represent clients.

The progressive directive raises the prospects to break the umbilical cord between corruption cartels whose networks thread between the Legislature and the Judiciary.

In running rings around the Judiciary, through networks of senior lawyers in the Bench and the Bar, the cartels are able to slow down, divert, distract and eventually subvert and defeat the course of justice, and which the President seeks to change.

Article 259 of the Constitution says: “This Constitution shall be interpreted in a manner that promotes its purposes and principles...and advances the rule of law....”

LEGAL EXAMINATION

How is the rule of law advanced, expanded and honoured when MPs, including senators, who enact the laws and enjoy supervisory powers over other institutions to uphold the public interest, also troop to court to defend private interests that conflict with the public interest?

How is the rule of law advanced, expanded and honoured when members of the JSC, who are mandated to recruit, promote and discipline judicial officers, continue to solicit and accept legal briefs to represent clients in court?

At the LSK Annual Conference held on December 17 last year, Narc party leader Martha Karua, a veteran lawyer, petitioned the LSK leadership to convene a public national conference hosted by a university to discuss the impact of rogue lawyers in Parliament and JSC acting as if there were no laws to regulate their conduct.

Ms Karua was concerned about, among other things, conflict of interest when JSC members continued practising in court before the same magistrates and judges whose disciplinary and promotion decisions they presided over.

She also pointed out that the continued involvement by MPs in the National Government Constituency Development Fund (NG-CDF) also needed serious legal examination due to its consequences in breaching the principle of separation of powers.

CONFLICT OF INTEREST

Leading the premier club of lawyers seemingly blind to conflict of interest is Siaya Senator James Orengo, a senior counsel who sits in the Senate Legal Affairs Committee.

He is among the most articulate voices in the war against grand corruption and impunity, yet without batting an eyelid, and in spite of public protestations, Mr Orengo is among the leading lawyers representing Deputy Chief Justice Philomena Mwilu in criminal proceedings against her.

Instructively, the Senate committee has powers to summon the Director of Public Prosecution, Mr Noordin Haji, and demand information from him that could be part of material evidence in court.

Senate Majority Leader Kipchumba Murkomen, a lawyer, has been vocal against the prosecution of former National Treasury Cabinet Secretary Henry Rotich, while he also appeared in court to represent Nairobi Governor Mike Sonko in criminal proceedings.

POLITICAL WILL

The two past chairs of JSC, Mr Abdullahi Ahmednassir and Prof Tom Ojienda, continued to receive and accept legal briefs from clients appearing before the same magistrates and judges whose recruitment, promotions and discipline cases they presided over by dint of being JSC members and leaders.

LSK’s silence on the state of affairs has been most curious and worrying.

Now that the President has directed the Attorney-General to craft a law to reign in these rogue lawyers, one only hopes they will not gang up to scuttle the effort to compel them to walk the straight and narrow path of professional self-discipline and regulation.

Mr Mugolla is a public policy analyst. [email protected].