East African Law Society delegates have been in Mombasa for their annual conference. Law and justice tend to get mentioned in the same breath as do attributes such as integrity and ethics, hence the special place of lawyers.
When he addressed the gathering of 700 learned friends last week, lawyer Mohamed Nyaoga zeroed in on integrity matters, warning on pitfalls of breach. He urged lawyers to “embrace best corporate governance practices and ensure citizens are protected against illegal practices”. This is where this country is; in a rut with her elite.
As a nation, we have, over decades, entangled ourselves in a self-reinforcing ethical ecosystem that equates us with corruption. Self-gain and self-entitlement are choking our collective conscience and have also succeeded in eroding professional ethical safeguards spelled out in various professional codes of conduct.
The current war, waged by President Uhuru Kenyatta, on graft is earnest and positive and could well restore some hope but the weight of impunity may have irredeemably distorted the principles of equity and accountability, rendering Kenya among the most unequal societies anywhere.
Too many doctors have ignored living true to the underpinning creed of life above all, the Hippocratic oath not withstanding. Besides policy and resources issues, graft is part of why the health sector ails.
Our engineers no longer suffer any scruples if their handiwork fails to add up to scratch. Too many teachers right up to the universities are getting stripped of respectability in part because they prey on their charges with abandon.
The professional bodies, from medical practitioners to teachers and lecturers’ unions, are most visible and virulent for instigating labour matters but hardly professional concerns. Then there are the Kenyan politicians who in their representative “profession” have emerged as the epitome of gluttony.
They consider the about Sh1 million they earn per month as pittance and are on the verge of creating for themselves terms where they will determine when to hike their perks. It’s a extraction frenzy!
In a country where unemployment is alarming and the basic wage is less than Sh15,000 and all these breaches, justice is cynically denied. It’s a stinging indictment of our elite across professions. But the vulnerabilities have security and instability consequences.
However, the lawyer whether in the bar or the bench is in the mind of the ordinary person considered the natural bulwark against assault on justice. When it comes to the quest for justice, lawyers come only after clerics as those are seen as lighthouses who guide those straying.
Thus when others are consumed in opaque or soulless ethos, lawyers are expected to stand to be counted. Perhaps, this is why Nyaoga said society looks upon lawyers as protectors.
Lawyers can lead in the fight to restore the stature and gravitas of their society and make their voice both feared and respected when it comes to defence of justice beyond the narrow confines of civil rights and liberties.
In this country, the foremost litigant in defence of public interest is one Okiya Omtatah, a non-advocate! When it comes to getting into the trenches for public interest the one lawyer we get to hear about is Apollo Mboya.
The dynamics of doctrine of separation of powers notwithstanding, LSK must feel obliged to speak out when legislators for example thumb their nose at the public and incessantly hike their perks, which overburden the taxpayer. But what if lawyers themselves choose to behave like a shoal of piranhas?
The 2015/16 Auditor General’s report questioned the Sh2.14 billion paid by the Electoral Commission of Kenya to lawyers, who had handled election petition cases. The affected lawyers no doubt did a massive job in the cases considering the tonnes of data they had to analyse and literally plough through and few begrudge them the fees they command.
However, for lawyers to be paid between Sh1.8 million to as much as Sh2.9 million per day and for the 14-day exercise by the Independent Electoral and Boundaries Commission stunned Kenyans. IEBC is a public funded body.
Indeed information emanating from the IEBC related to tendering and procurement expenditures during polls stinks to high heavens. It’s virtually a fiscal carnage, whose synopsis Kenyans were treated to last week when the former CEO Ezra Chiloba and chairman Wafula Chebukati appeared before House team, only compounding.
Admittedly, every profession has within its ranks individuals with varied moral and ethical fibre. However, because of their role in the administration of justice, lawyers are presumed to subject themselves to certain standards and regulations to act as safeguards that fortify integrity.
When they subvert the course of justice and act in breach of these regulations, there are supposed to be consequences and sanctions, which in their case can include being struck off the roll, besides facing criminal indictment.
It is no secret that the Advocates Complaints Commission based at the State Law office and whose mission statement is “to eradicate incompetence and dishonesty and improvement of professional ethics and services among advocates”, is swamped by thousands of complaints against lawyers, mainly from clients.
Kenyans have cause to be alarmed by the number of complaints that blight the profession and whereas nobody realistically expects every lawyer to be like Caesar’s wife, impeachable, the deluge of complaints against them betrays existence of critical gaps in enforcement mechanism.
Early last year, then Attorney General Githu Muigai gazetted 32 names of lawyers, compiled by Advocates Complaints Commission, who had been struck off the role of advocates for professional misconduct. The figure strikes as conservative given the uproar against rogue lawyers.
The law does not condemn unheard and the course and cost of justice can be tedious, so those facing charges of unprofessionalism will first face the disciplinary committee after which appropriate action will be taken against them.
But spare thought for thousands of victims of lawyers, who are not just incompetent but brazenly act in a manner prejudicial to the interest of clients, specifically on money matters. This is the area with the bulk of complaints.
It is an open secret that some lawyers are part of cartels, which have muddied the property market and specifically land transactions. It is common knowledge that behind most crooked land transactions are rogue lawyers. Within the corridors of justice, there are cases which have been running for ever with reports of files disappearing with suspected collusion of lawyers and courts registry clerks.
These are the troubling facts which lawyers gathered in Mombasa must strive to address themselves to. But the courts too have obligation to shift gears. The case backlog situation is far from acceptable and remand cells and prisons are overflowing.
The Judiciary, under Chief Justice David Maraga, may not have all it needs for accelerated efficacy due to scaled-back funding, more so, this financial year, but it is different from the one his predecessor Willy Mutunga inherited and which in the latter’s words was akin to an auction house where justice went to the highest bidder.
The Judiciary is currently less hobbled by negative perception and certainly cannot be accused of lack of backbone to stand up to political manipulation. Maraga’s Supreme Court nullified presidential elections last year!