Public institutions should never pay for private legal services as though they are profit making companies
The ink had barely dried on last Sunday’s article on the corruption within the legal fraternity when the news came that the Law Society of Kenya (LSK) council had approved all the candidates for the male representative election to the Judicial Service Commission following a meeting on February 11.
The meeting was held to adopt a report by the committee set up to vet the candidates. The team, made up of three advocates of the rank of senior counsel, the CEO/secretary of LSK, an ethics and compliance officer from the society’s secretariat and a returning officer from the Independent Electoral and Boundaries Commission (IEBC), had disqualified two candidates for non-compliance with the eligibility criteria set up by the LSK membership. The council had deliberated on the report and had voted to reject it.
For the LSK to ignore a report of its committee and reject the adverse recommendations made against some candidates is no different from what we saw in the National Assembly regarding the sugar report. Worse still is the fact that what was being ignored is the Electoral Code of Conduct which had been adopted by an Annual General Meeting of LSK on March 24, 2018 and had laid out the mandatory qualifications for persons seeking an elective office of the society.
This is the latest proof that the LSK no longer serves the interests of its members and the larger public. As the premier association of lawyers in Kenya, and the loudest critic of public authorities on matters of ethics and governance, the LSK is expected to be a shining example on how to uphold the rule of law.
It is frightening to imagine how the future looks like from here. It’s been decades since the society was in a position where it had lost moral authority to give any guidelines regarding the observance of the Constitution and the law. This was in the 1980s and I captured the fate of the society in the following paragraph of my book, The Black Bar, that shows the damage the LSK council may have done to the relevance of Kenya’s legal fraternity.
“No wonder therefore that the Black Bar lost all the clout it had wielded in the years between 1977 and 1983. When Sir Alfred Simpson retired from the post of Chief Justice in October 1985 and the chairman of the LSK, GBM Kariuki asked President Moi to take the chance to Africanise the position, the President replied by telling lawyers to first put their house in order before commenting on the Judiciary. Citing the high level of professional misconduct, he told the LSK that it had not raised a finger against its members’ malpractices and urged lawyers to realise that they were not angels. When President Moi proposed to abolish the security of tenure for judges and the LSK protested against the move, Vice President Josephat Karanja dismissed lawyers as ‘colonial anachronistic cobwebs’ and the LSK as an ‘irritating irrelevance’. The people of Kenya had no reason to believe otherwise.”
How did the legal fraternity descend so low since when Paul Muite and his council of Willy Mutunga, GBM Kariuki, Martha Karua, Japheth Shamalla, Charles Nyachae and Garvace Akhaabi among others put the LSK on top of the world by joining others in the fight for the re-introduction of multi-party democracy?
To me, the answer lies in the accusation I have repeatedly made; that the LSK is serving the interests of cartels. It’s labouring under a ‘cartel capture’. It follows therefore that the only way to save the LSK from certain doom is to break the hold these cartels have on the society and the profession.
Over the last few years, the membership of the legal profession has grown by leaps and bounds as more and more universities offer law degrees. The demographics of the membership have changed drastically and it is likely that most of the holders of practicing certificates today are below the age of 35 years.
Lowering of standards
There has been no commensurate growth in opportunities as the profession can only grow as fast as the rest of the economy. The result has been a lowering of the standards of terms of employment with starting salaries in the legal profession for lawyers being the same as that of a legal secretary. There are so many lawyers they now literally come “two a dime”.
But it’s not just the salaries that have gone down. In some areas of employment, the treatment of young lawyers is appalling. Those who are lucky to get a job work long hours into the night, sometimes under the monitoring of time sheets and CCTV cameras. They are shouted at, fired and replaced “at the drop of a hat” and the majority has no real prospects of ever making anything of themselves in the profession.
This group of underpaid and despairing young lawyers is the shoulder on which the Kenyan legal profession rests today. A couple of decades ago, young lawyers would sit to discuss cases they were handling, others they were reading about and to debate on the adherence of government and public institutions to the law. As a young lawyer, one was advised to spend their time sharpening their skills since seniority would invariably bring in the opportunity for a good life.
Not so today. The young lawyer cannot afford the luxury of sitting to debate ideals on ethics and governance. Either they are unemployed and busy trying to scratch a living in an engagement somewhere or they are stuck in a dead-end job with little hope for the future.
This is the kind of situation the policy of giving 30 per cent of government business to young persons was meant to prevent. And most probably, the young lawyer is the best placed of all young people to run a viable business by setting up a law practice. All it takes is a desk, a seat and a computer.
Today, the taxpayer spends billions of shillings in legal fees that are paid to the private practice lawyers. National government ministries, departments, agencies, parastatal and other statutory organisations and county governments are paying off scandalous amounts of money to the legal profession.
Thirty per cent of these billions rightfully belong to lawyers below the age of 35 years. It’s government policy. If it was complied with, we would immediately uplift the standards of living of many young lawyers who would get an opportunity to work for themselves. We would also improve the health of the legal profession by ensuring that our young lawyers are stable enough to pursue and protect the values for which the LSK has been known for.
At the moment, all the billions of shillings spent by the taxpayer as legal fees go into the hands of a few lawyers. They control all the work that the Kenyan public has set aside for private practitioners. This is actually how the cartels in the legal profession started forming. To break these cartels we must first break the monopolisation of public business by a few.
Added to the youth are lawyers living with disability. The government policy is that about five per cent of all public business should go to persons living with disabilities (PWDs). This policy was meant to encourage PWDs to engage in trade and commerce and there are many instances when public business is reserved for PWDs.
The unfortunate reality of the legal profession is that PWDs who are lawyers are in the civil society. It is likely that private clients may discriminate against legal PWDs but there is more than enough business for them from the public sector. Committing to the policy of business to PWDs in the public sector will encourage many of them to start up private legal practice.
And finally, there are the elderly lawyers. We have many senior lawyers who are hardly able to make ends meet. Many of these are those who fought for the ideals that the legal profession came to be known for and many too are in desperate economic situations because they decided to stand up against a system that had the will and the means to compromise everyone. Today most are doing so badly economically they have no voice in the direction everything is going.
The Constitution says that the State shall take measure to ensure that older persons fully participate in the affairs of the society, pursue their personal development and live in dignity, respect and free from abuse. We, therefore, need to ensure that part of the billions we are spending paying for legal services also go to these older lawyers to whom we owe so much.
For those young lawyers in employment, the LSK needs to begin addressing the issue of terms and conditions of service in the profession. Ethic, governance and the rule of law in Kenya cannot be protected by lawyers who are themselves prisoners of abuse. The irony is that even though today the members of the council of LSK fully depend on the vote of young lawyers to be elected, they are unable to fight for the same young lawyers who voted for them because that would be against the interests of the cartels.
We could also promote the capacity of public institutions to hire more young lawyers and on better terms of service by cutting down on the exorbitant legal fees charged by cartels on the taxpayer.
The public institutions should never pay for private legal services as though they are profit-making companies. Even where they make profit, it is meant for the public good and that public includes lawyers. We urgently need a scale of legal fees that is specific for all legal services outsourced by the taxpayer to private lawyers.
These measures will give us a healthy legal profession and rid us from this strangling hold that cartels are having on the profession. What these cartels are doing with this hold is perverting our sense of justice and our value systems. They are imposing on us an understanding of rights and responsibilities that favour their privileges and their impunity.
Haven’t you wondered how corruption cases have become the most significant issue in the area of human rights? Isn’t it bewildering how these cases are sucking in the best of our human rights defenders one after the other?
The truth is that corruption cases are like omena. They taste really good, are highly nutritious but if you don’t prepare them well they are full of grit and they smell. Wash them well and they will be eaten by kings.
The writer, an Advocate of the High Court of Kenya, is legal adviser to former Prime Minister Raila Odinga.