Lawyer MPs violating principles of separation of powers

Saturday December 14 2019

Elgeyo-Marakwet Senator Kipchumba Murkomen. He has been vocal against the prosecution of former Treasury CS, Henry Rotich, while he also appeared in court to represent Nairobi Governor Mike Sonko. PHOTO | FILE | NATION MEDIA GROUP


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 law to rein in state and public officers insisting on earning  a monthly public pay slip and running 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),  the Judicial Service Commission (JSC) and law schools, that it is State House that is leading the way in advancing jurisprudence and not legal profession.

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


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

Among ranking members of this impunity club feature prominent lawyers who draw salaries as Members of the National Assembly or the Senate, but who 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 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 interpretation of the constitution says in part: “This constitution shall be interpreted in a manner that promotes its purposes and principles... and advances the rule of law...”

How is the rule of law advanced, expanded and honoured when MPs and 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 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, but continue to solicit and accept legal  briefs to represent clients before the courts?

During  LSK Annual Conference on 17 December 2018, Narc-Leader, Martha Karua, petitioned LSK leadership to convene a  public national conference hosted by a university to discuss impact of rogue lawyers in Parliament and JSC acting as if there were no laws to regulate their conduct.

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

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


Leading the pack  in a premier club of lawyers blind to conflicts of interests is senior counsel and senator James Orengo, who sits in the Senate Legal Affairs committee.

Orengo is also among the most articulate voices in the war against grand corruption and impunity.

Without batting an eye lid, however, and despite public protestations, Mr  Orengo is among lead lawyers representing troubled  Deputy CJ Philomena Mwilu in criminal proceedings against her in court.

Mr Orengo’s Senate Legal Affairs Committee has powers to summon the DDP, Mr Noordin Haji, and demand information from him that could be part of material evidence in court.

Senate Majority leader and lawyer, Mr Kipchumba Murkomen, has been vocal against the prosecution of former Treasury CS, Henry Rotich, while he also appeared in court to represent Nairobi Governor Mike Sonko, last week in criminal proceedings.


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  as JSC members and leaders.

LSK’s silence on this state of affairs has been most curious and concerning.

Now that President has directed the AG to craft a law to rein 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 comments on topical issues. [email protected]