“Woe unto you also, ye lawyers! For ye lade men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers. Woe unto you lawyers! For ye have taken away the key of knowledge: ye entered not in yourselves and them that were entering ye hindered.”- Jesus Christ (Luke 11:46-52)
The most persistent complaints against lawyers nearly always involve ambulance chasers and their failure to pay accident victims. This complaint is possibly the oldest against lawyers in Kenya, and is deemed to be the indicator of the rot in the profession. Assistant Justice Minister Robinson Githae invoked it recently when he called for reforms in the profession.
But crimes committed by struggling ambulance chasers pale into insignificance against the big ones by the more established colleagues, the blue-chip legal firms, which are the cream of the profession. The errant personal-injury lawyer is only the pick-pocket in the profession. Apart from a few instances involving huge sums of stolen cash, the amounts involved are petty compared to those lost in bigger fraudulent schemes through blue and white collar misconduct.
Rampant inflation of bills
Inflation of legal bills is particularly rampant in parastatals. Billions of shillings of public funds have been siphoned through outrageous legal fee notes. The Central Bank of Kenya, Kenya Ports Authority, KenGen, Kenya Power and Lighting Company and National Social Security Fund are only some of the organisations that have lost billions of shillings in settling unjustified and outright criminal legal bills. But no one talks of the white collar crime possibly because big names and old reputations are involved. The small lawyer has to bear the blame for all the rot although his or her bigger colleague does the worst damage. The big lawyer’s name will, however, never be found on the list of complaints at the Advocates Complaints Commission. They face no disciplinary cases, but is it because they are upright? No, it is because no one knows what they are doing. Or no one wants to tangle with them. They are connected to some of the most powerful offices in the land, and it is they who bribe the judges and the big guns.
Public pays the price
And it is the public that pays the price of the white collar crime. The accounts involved in personal injury cases are small, ranging between shs.100,000 and shs.1,000,000 per case. Finally, the monies are recovered, though not without a lot of distress to the clients.
But will the public ever recover the billions lost by peasant farmers, small savers and large parastatals through the fraud of big lawyers and big law firms? Will the big lawyers and the firms ever be called to account for their dealings?
In an industry where 10 per cent of the lawyers control 90 per cent of the business, is it any wonder that small settlements are being misappropriated? Does anyone ever wonder how the small lawyer survives? Personal injury cases have in the past been the major issue, but the ability of errant lawyers to take advantage of accident victims has greatly been reduced. Insurance companies are very open to claimants with information if the claims have been paid and how much.
Law enforcement agencies have also been very helpful to complainants when allegations of theft are made. The claimants themselves are also very aware of the legal procedures involved and their rights as victims. The reduced numbers of complaints against lawyers in accident cases also shows the clientele’s enlightenment.
The real problem in the profession is fraud. In accident cases the greatest fraud is n to against claimants, but insurance companies. Lawyers are the centre around which the insurance scams are created and executed. Non-existent accidents occur, unknown people die, leaving imaginary survivors. “Police abstracts” are created, identity cards made, death certificates issued and claims made.
Imaginary injuries
Other scandals relate to imaginary injuries fully certified by errant doctors, imaginary passengers in real accidents, fictitious accidents with real injuries… the list is endless. All these are carefully executed by cartels of lawyers, police, doctors and private investigators. Lawyers are the nerve centre. In land transactions, lawyers execute schemes to acquire unoccupied private land. Lawsuits are filed against the registered owner of a parcel of land based on a non-existent sale contract. Service summons is faked and judgment is obtained in default owing to purported failure of the land owner to defend the suit. Orders are obtained for a transfer to be executed in favour of the supposed purchaser, and the land is transferred to the new owner. An unsuspecting business person later buys the land from the fraud cartel.
Lawyers have also been at the centre of the ripping off of corporative societies and land-buying companies. Management committees of coffee and tea farmer’s cooperatives have colluded with them to siphon millions of shillings from the societies’ coffers.
Origin of Legal Profession’s Infamy
“He saw a lawyer killing a viper on a dunghill hard by its own stable; and the devil smiled, for it put him in mind of Cain and his brother Abel”. – S.T. Coleridge “The Devils’ Thoughts”
The plague afflicting the legal profession in Kenya is the invasion by badly trained and disoriented lawyers. From 1970, the University of Nairobi admitted students to study law in its newly established faculty. Though this was the ultimate realization of the goal to establish local training institutions for lawyers, the faculty was a far cry from the one at the University of East Africa, Dar es Salaam. It was best criticized by Mr. Kiraitu Murungi in his third year LLB thesis in 1977. The chief problem according to Mr. Murungi, now the Minister for Justice and Constitutional Affairs, lay in the teaching staff.
Due to a shortage of teaching staff, the university had for lecturers, post-graduates of masters’ level and full time practitioners. Few of them had the experience of law lecturers at Dar es Salaam. They were not experts in the fields in which they lectured and many had not studied the subjects they taught beyond their undergraduate years. Most had no previous teaching experience and conducted lectures by reading out materials. There was no discussion except for one or two students asking the teacher to repeat a sentence. The full- time practitioners were worse. They had very little time to prepare for lectures and were content to drone through lecture notes prepared years before. The only chance that any law student has to sharpen his skills is during tutorial sessions.
At Dar, students were required to present legal arguments in favour of or against legal propositions or to act as prosecutors or defenders in moot courts. The sessions were chaired by the lecturers though each student had, during his stay at the university, to present his arguments before a judge of the High Court of Tanzania.
At the University of Nairobi, tutorials were a travesty. Mr. Murungi accused its lecturers of using tutorials to exercise their sadistic talents and courtroom prowess: “In front of a bespectacled intelligent looking and smiling teacher, the panic stricken and sweating student looks like a clown and a source of attraction to the rest of the class. He feels like a criminal in the dock. He feels small and pathetic. Given the ability he could sink through the floor”, he wrote.
The tutorials that came close to being discussions were those where dialogue was conducted between the teacher and “a few loud-mouthed chaps”. In such tutorials, the rest of the class were mere spectators. They had thus been nicknamed Jiburudisheni (entertain yourselves), the title of a popular Kenya Broadcasting Corporation TV musical programme.
He also accused the lecturers of academic arrogance. He said they viewed any exercise of academic freedom by students as delinquency and forbade them, at the pain of failure, from holding any view apart from the “correct view” as expounded by the lecturer. One law professor told students that they could think what they wanted but at the end of the day his word was law.
Also restricting the proper teaching of law at the faculty was the State. The University of Nairobi was crawling with undercover security agents and informers. They attended lectures and took notes of what the lecturers said. One lecturer, Mr. Robert Martin, was arrested for teaching a Marxist theory on nature of law and its social functions. The state also influenced the awards of scholarships and promotions. These were not granted on merit but along the lines of political affiliation. Lecturers who toed the line and were persuaded towards a legal philosophy that that justified a dictatorial government were rewarded with promotions and lucrative scholarships and research grants. Many law lecturers thus ended up in the gutters and had nothing to do with their free time other than spend it drinking at the Senior Common Room.
The overall effect was to confuse the students. Those lecturers with a capitalistic learning taught students to be practitioners and induced them to believe in the money they would make. Those with a Marxist bent taught them to be reformers, to think of the common man and the injustices visited upon him by society. The students became pro- and anti-government lecturers.
Most of the students became apolitical in the confusion. They were utterly disoriented, taught on the one hand that they couldn’t question the law, and on the other that the law was a bourgeois mysticism. The kind of orientation they had can be discerned from the words of one student who Mr. Murungi quotes: “We want to complete our studies and partake of the fruits of Uhuru like everybody else in Kenya”. No one however had taught them how to be honest and professional in the pursuit of these fruits of Independence. In fact, no one ever told the what the fruits were.
This situation compared dismally to that at the University of East Africa in Dar where lawyers were trained before the faculty at Nairobi was set up. Mr. Philip Ochieng’ in his book I Accuse The Press, describes the university during this period as follows: “In all my 26 years of experience as a newspaperman in all the three East African countries, I do not recall anything like the kind of openness and depth of debate such as took place in Tanzania between 1967 and 1975. The University of Dar es Salaam became the intellectual Mecca of all of Africa, attracting thinkers from all over the world. There were such celebrated names as Walter Rodney of Guyana, John Saul of Canada, Marga and John Holness and Clive Thomas of Jamaica, Giovanni Arrighi of Italy, Orton Chirwa and Kayama Chiume of Malawi ( Mr. Chirwa was later to be convicted, together with his wife, of treason by Malawian President Kamuzu Banda and died in jail in October 1992having seen his wife only once), Yoweri Museveni and Mahmoud Mamdani of Uganda, Manuel Gottlieb of the US, Arnold Kettle, John Loxley, Lionel Cliffe and John Iliffe of the UK… though all contributed ideas freely and with relatively little fear of being victimized by the State they ranged from the far right to the far left.”
The University of Nairobi faced another problem in the 1980s when the government initiated a policy of quota intake from various regions. The faculties of Law and Medicine have traditionally only accepted the best students in the country. These students invariably had studied in the best schools, known then as national schools. Students from marginalized regions had great difficulty entering these schools. For others who couldn’t get access to the limited places at the University of Nairobi, India offered a perfect option. Unlike the UK or the USA, education in India is cheaper and visas easy to come by. Though India has some top grade universities and has produced some of the best legal brains in the Commonwealth, it also has many mercenary universities that literally sell degrees. May students from Kenya went to the latter. So, a student could score low marks at secondary school in Kenya and join a mercenary university in India and come back with a law degree. Had the tradition of the Law Society of Kenya to interview all persons applying to be admitted to the Roll of Advocates continued, it would have arrested this invasion.
But over the years LSK has paid scant attention to issues of professional standards. It has reduced its role in the admission of advocates to a purely ceremonial one where a representative of the LSK attends the swearing in of new advocates. Blame for failure to vet entrants into the legal profession is also shared by the Kenya School of Law. The school acts more like an in-house training institute for lawyers rather than a professional entrance examiner. An average Form Four dropout can pass any of its Bar examinations.
