Way before Section 32 of the Advocates Act was promulgated, the plight of the young lawyers in the profession was deplorable. The legal profession, in its essence and tradition, is graduated on the basis of seniority. Seniority is everything in the legal profession. It determines priority of audience before the court, priority of appointment to public, and especially judicial office, and also ability to gather good clientele.
A healthy respect for seniority always comes with an unhealthy disrespect for the juniors at the bar. It is mistakenly thought that young lawyers are the ones prone to fraud, theft, malpractice, dishonor etc. It is on this premise that Section 32 is based. The drafters of the bill that introduced Section 32 thought that all the ills of the legal profession would be cured if young lawyers were placed under probation for as long as necessary to graduate them on seniority scales.
Section 32 is also based on the wrong attitude of the legal profession towards its seniors. Everything in the legal profession is so tied to seniority that the role of junior lawyers is totally disregarded. The wrong attitude is that the legal profession can and will adequately serve society using only its senior members.
A fallacy lies here because junior lawyers are the backbone of the legal profession all over the world. It is the junior lawyers that stay up all night, run up and down the corridors of court houses arguing cases. They are the right hand to senior lawyers who look for business and attract clientele. Yet, when it comes to sharing the cake, the profession treats its young component as a log in the wheel. Section 32 is such treatment.
It is disheartening that the senior lawyers in Kenya, who are the architects of Section 32, spent over ten years fighting to be recognized as an essential part of the legal profession. That was in the 1970’s when they joined the profession and when it was under the English barristers. In a paper he wrote during that time on the young African advocate, Dr. Gibson Kamau Kuria lamented: “His plight has been caused by an adroit design and execution of the policy of slowing down Africanisation of the legal profession, with a view to preserving the privileges that the essentially non-African professions enjoyed during the colonial rule. This policy has been devised and executed by non-Africans. The confidence that he can make a competent lawyer has been taken away. The policy referred to seeks to tell him that he cannot make progress unless he acts a junior partner to a white. Big law firms tend to attract big business. Small law firms tend to attract small business. There is no way of breaking the vicious cycle without the assistance of the government.”
This statement makes sense today by substituting the words white and non-Africans for old, African for young and policy for Section 32.
The senior members of the Bar felt so strongly that they had something to contribute to the profession despite their youth, that they forced the amendment of Section 13 of the Law Society of Kenya Act. The section governed the election of the chairman and vice chairman of the society and required that all the candidates for the position be former members of the council. The candidates were also to be elected by the council of the society.
On February, 1975, a resolution supported by Maina, Kagiri, Muthoga, Gautama and Juma and opposed by Thomson, Deverell, Hamilton, Harragin, Le Pelley, Kapila and Green was passed in reading: “The provision of Section 13 of the Law Society of Kenya Act relating to the election of the chairman and vice chairman have activated their intended purpose or usefulness and are not in the best interest of the society nor with the principles of democratic choice. Section 13 should be amended to ensure the chairman and vice chairman of the society are henceforth elected by members of the society as a whole…”
They were real reformists, our senior lawyers in those days. They argued that the government should give them loans to put up law firms to compete with the already established non – African. They argued that since all of them were sons of peasant farmers, they could not raise money or secure loans from their own means. In a letter written to the Attorney General in 1971, Lee Muthoga stated: “I must point out that many of us are anxious to serve our country in private practice but are compelled by sheer necessity to industry and take up non-legal appointments for failure to get places in a field already predominantly manned by non-citizens.”
Twenty five years later we are back to the start. The already established law firms have grown to capacity and cannot expand further. Employment is near impossible for new lawyers whether in private industry or public service. And Section 32 says the lawyers must be employed first before they can join the market to compete. Result: No employment, no new lawyers setting up practice, no competition, and old lawyers get richer, young lawyers die. Oh…what injustice, what irony of law?
Before looking further into reforms of the legal profession, let us look at its present state. Beginning with the training of lawyers, we shall see how the profession has fared, failed and then at how it can be rejuvenated.