Before turning attention to the legal profession, there is one issue that is worthy of note regarding the role of the Judiciary in fighting corruption. There were days when judges and magistrates made their reputations from the way they protected the public.
The people celebrated judges and magistrates who were alive to the threats to the society and were in tune with their role in the criminal justice system. Many areas in Kenya can identify a judge or magistrate who made a difference to the lives of the locals by being tough on crime.
And this is not a Kenyan innovation. The judiciary in many countries has consciously played a positive role in protecting the people from criminals. In the 1980s and 1990s, magistrates in Sicily, Italy, decided that they will help their people to deal with the mafia which had taken over the life of the nation.
In their ensuing war against the mafia, several magistrates were assassinated by the organised criminal gangs, some together with members of their families. But it did not deter them. And they succeeded in wrestling their society back from the mafia.
You don’t get to hear of such judicial heroes in Kenya any more. Instead, judicial officers are making their names by being tough on prosecutors. It’s almost a competition of who can extend the rights of criminal suspects farthest and who can frustrate the most prosecutions.
In the legal profession, we have come to celebrate only those judges and magistrates whose decisions make the criminal suspect king. The more outrageous the decision from the Judiciary, the louder the applause. It doesn’t matter how much damage these decisions are causing to the safety and security of the society.
A lot of this praise is part of a game plan to establish a jurisprudence that can be used as an underground escape tunnel for the use of corruption kingpins that can pay for their freedom.
Does this imply that there exists a corruption cartel that brings together members of the legal profession and of the Judiciary? Yes it does, and indeed, yes there does exist such a cartel.
Cartels are not new in the Kenyan legal profession. In my book, The Black Bar: Corruption and Political Intrigues within Kenya’s Legal Profession, I trace the first cartel by Kenya’s lawyers to one that was formed by White advocates for the purpose of preventing the Africanisation of the legal profession.
Then I wrote about the cartels formed to rip the insurance industry. I wrote then as follows regarding these cartels.
“Their greed knew no bounds and they turned on the insurance companies. They formed fraud cartels through which fictitious claims were made with a police officer on one side to supply false accident reports and a medical doctor on the other to supply false medical reports. The lawyers went on a plunder, usually assisted by a claims manager in the insurance company …”
These cartels did not stop with insurance claims. There were even cartels with armed robbers, where lawyers gave banking services for stolen loot and assisted the robbers pay the necessary policemen and magistrates to secure their freedom.
By the mid-1980s, the Kenyan legal profession was such a threat to the Kenyan society that I observed as follows in my book.
“The debate also found its way to the National Assembly where the members expressed concern over the level of professional misconduct and urged the Attorney-General to arrest and prosecute crooked lawyers. The press, referring to the lawyers as ‘Kenya's Whiteys in the woodpile’, also urged the government to take action.
Under the headline banner ‘Lawyers' dirty tricks exposed’, the Sunday Nation of July 21, 1985 denounced ambulance chasing and swindling in personal injury cases. Its sister paper the Daily Nation, in the editorial of September 15, 1986 headlined ‘Defend the people from these sharks’ stated: "It is urgent that we do something to block this legal loophole so as to defend our people from these young sharks."
And the worst was yet to come. As we got into the 1990s, we had the political cartels that operated under President Daniel arap Moi’s regime that involved a panel of chosen lawyers who worked with a group of chosen judges, led by the Chief Justices then, to deliver the decisions the political system wanted.
This political cartel then gave birth to an elite group of lawyers who formed the corruption cartel. This cartel, also formed by the regime, worked with public officers and parastatal chiefs to facilitate corrupt transactions that generated money for the regime.
As calls for democracy and accountability increased resulting finally to the re-introduction of multi-party democracy, these political and corruption cartels merged and formed one massive and ruthless cartel for the protection of the corruption kingpins of the Moi regime from accountability.
Members of this cartel stretched from the magistrates court to the Court of Appeal, involved some of the senior most lawyers and many young lawyers who acted as satellites of the seniors, to members of the criminal investigation agencies and State counsels at the Attorney General’s office and the office of the Director of Public Prosecutions.
When one looks at the legal profession today, one is easily deceived to believe that we have always been there to fight for the freedom of the common Kenyan. That is very far from the truth.
Though we ride on the role we played in the return of this country to multi-party democracy, this is a war we were not together. The legal profession was split between those who supported the pro-democracy agitators and those who supported the dictators.
It took heroes like the chairman of the Law Society of Kenya Paul Muite assisted by his council and many other activist lawyers to risk their life and limb to fight alongside other heroes in liberating Kenyans from dictatorship.
The truth is that as this was going on, a section of the profession was assisting corruption kingpins to rip this country apart and get away with it. Indeed, the Kenya legal profession is the one that designed the impunity the country suffers from today.
It’s time to call out the Kenya legal profession in front of all Kenyans. This is our mess. We must clean this up. We are the designers of the perfect corrupt transaction. We are the designers of the perfect getaway legal strategy. And we have not done this to extend the rights enjoyed by Kenyans. We have done this for profit.
The first thing we must do is dismantle the legal corruption cartels. We know them, easily identifiable because they are led by lawyers who act as a Mr Fix-It for corruption kingpins. The way we will break these cartels is by refusing to be railroaded by a few Mr Fix-It into shielding them and their co-conspirators from scrutiny.
Currently, the majority of the lawyers are busy trying to make an honest living but easily fall prey to the manipulation of a few Mr Fix-It who get us to support ridiculous legal positions they design to protect themselves and their corruption kingpin clients.
We must stand up for our fellow countrymen and refuse to allow our profession to be used as an accessory in the perpetration of corruption. We must refuse to be whipped into outrage that is designed to be used to intimidate the criminal justice system for the benefit of some of the most ruthless characters of our time.
Secondly, we must introspect on our practices and procedures as a profession and look for the gaps that are being exploited by the crooks in our profession. For instance, the letter called a ‘Professional undertaking’ is no longer just an instrument of legal practice. It is now also a commercial paper that is used as the currency in corrupt transactions.
To explain this to the non-lawyer, a proper professional undertaking is used, for instance, in the case of the sale of land, when a lawyer promises on behalf of his client to pay, say an estate agent, their commission. The promise is based on the fact that the purchase price will be coming to the lawyer.
But in corruption, the professional undertaking is now the commercial paper through which deals are cut. At the middle of every corrupt transaction is a lawyer who issues professional undertakings to all gang members so as to secure to them their share of the loot once the crime is complete.
The professional undertaking operates together with the “Client Account”, the second most important instrument used by corruption cartels. While in legal practice the client account is operated for the purpose of holding money due to a client from a transaction prior, today the client account is a facility used by corruption kingpins to hide their monies from scrutiny.
Lawyers have become bankers and general commercial agents to corruption kingpins. We receive monies due to these kingpins and make payments on their behalf so that law enforcement agencies may never identify the crime and the client.
This is not law practice. This is plain old money laundering.
Unless we, led by the president and members of the Council of the Law Society of Kenya, address the many ways in which our profession has become the greatest ally to corruption kingpins in Kenya, then we have no more moral authority to point a finger at any public institution or public officer and accuse them of derogating the Constitution of Kenya.
The time has come for us lawyers to walk the talk on corruption.
Mr Mwangi is the author of 'The Black Bar: Corruption and Political Intrigues within Kenya’s Legal Fraternity' and the legal adviser to ODM leader Raila Odinga.