One way of looking at the Advocates (Remuneration) order is as a rule that protects the public by preventing lawyers from overcharging their clients. But another way of looking at it is as a rule that maintains the legal protection as a cartel which controls prices so that they will not go downwards. My belief is that the order serves more of the second than the first.
In present Kenya, two developments make the remuneration order a travesty. One is the move towards the liberalisation of the entire economy. The second in the trade practices (Monopolies and Price control) act. This latter act was promulgated to illegalise any attempt by the suppliers of any good and services to prevent prices from going down by agreeing on how to charge.
The Remuneration Order, in essence, is an agreement between lawyers that they shall charge in a particular way for the services they deliver. In many instances, lawyers are ready and in fact render services for amounts way below the prescribed fees. If the price of legal services today were left to the forces of supply and demand, legal services would become surprisingly affordable.
The reason would be that without the Remuneration Order, competition between lawyers would be enhanced. Those lawyers who have high overheads will be unable to deal with matters that have low returns, and these will be dealt with lawyers with low overheads. The Remuneration Order restricts competition by making all legal work good business for all lawyers.
But the effect of making some law-work bad business is that some consumers of legal services will find it hard going to retain good lawyers. This is more like the effect of structural adjustments programmes. The cure is, of course, the “safety net,” and the form of non-professional “peoples court’s”. Non professional courts assist disputants whose claims are so mundane that it is uneconomical to involve lawyers. They are a kind of panel of elders. The procedures are simple , the process is faster and lawyers are out-of-bounds.
Another area where competition is restricted in the legal profession in Kenya is in the international arena. One of the qualification for practising law in Kenya is that the lawyer must be a citizen of Kenya. Foreign lawyers are only allowed to practice law by specific mandate of the Attorney-General. Their practise is permitted for limited purposes like appearing before courts. No foreign lawyer can establish a law firm in the country.
Historically, this restriction was meant to protect the legal industry in Kenya for the locals, the fear being that allowing foreign lawyers into the country would take away the bread from the mouths of Kenyan lawyers. The effect has been to give Kenyan lawyers the exclusive privilege of nibbling at their country’s poverty.
Opening up the Kenyan legal profession to foreign competition would expose local lawyers to foreign laws and practices. In a world that is getting smaller by the day, this is an imperative. Previously, local lawyers could contend themselves with understanding local laws. But today contacts are being entered everyday that involve foreign commercial laws. Disputes are being filed in the High Court that require determination on the laws of England, America, Germany and Japan, etc.
Unless the presence of foreign lawyers is welcomed into the profession, most of these legal businesses will go outside the country. Disputes will be resolved in foreign courts, contracts drafted in foreign lands, etc. Even worse perhaps, the local lawyers will not reap the benefits of the growth of the global village. Kenyan lawyers will largely operate in a secluded cocoon ignorant of developments in other jurisdictions.
The most affected by this ignorance will be the local industry. The lack of connection with the outside world keeps the industry away from foreign finances, a gap that lawyers with international connections would bridge. They would similarly connect local charities to foreign foundations. The repertoire of legal work in Kenya would grow in line with the increased exposure of the local profession.
The current apathy in the profession is evident from the fact that though the United Nations Environmental Programme has been resident in Nairobi for several years now, the legal profession in Kenya has been unexposed to the field of environmental law practice. The field remains non-existent as do other fields that should be active by now for example consumer protection and product liability, merger and acquisition, intellectual property.
Another example of apathy of the local bar is the fact that it has made little contribution to the establishment of the Preferential Trade Area (P.T.A) and itself has been unaffected by the creation of the common market. In comparison, when the European country was established, the entire mode of commercial law practice in the member states changed drastically.
The city of Brussels was invaded by the least 150 foreign law firms. Similarly, the opening up of Russia attracted foreign law firms from countries including America in preparation of the expected foreign investment.
To compound to this felonious short-comings of the local Bar is the absence of continuing legal education. Apart from the training received at the Law School and the university, Kenyan lawyers have no opportunity of enhancing their knowledge locally. The Law Society of Kenya has the onus of providing opportunities for further training but apart from the few lectures delivered by prominent local jurists once in a while, there are barely any accessible training opportunities locally.
As Kenya enters the twenty first century, the legal profession in Kenya will find itself in a deplorable situation from which it can emerge only if it retains all its members. The way Kenyan lawyers do business will have to be revolutionised if the profession will keep pace with developments in the rest of the economy. In the following articles, we shall see how these changes can be effected not only in the bar but also in the court system.