In the Epilogue of my book, The Black Bar: Corruption and political intrigues within Kenya’s legal fraternity published in 2001, I stated as follows concerning the Law Society of Kenya (LSK): “The immediate effect of the repeal of Section 2A of the Constitution was to transfer power from the LSK to the new opposition political parties. This was chiefly because the LSK was never a political party and did not thus enjoy a representative capacity, and partly because when the pro-democracy advocates in the LSK joined the new political organisations, the significance of the Society in the new political scene was minimal. The legalisation of political pluralism and the shift of political competence and personnel from the LSK to the registered opposition political parties left the Bar Association hollow — indeed spent. Issues of democracy were now being tackled by the political parties and the public no longer looked upon the Society to speak up against the government.”
In many ways, that position has not changed. LSK is still grappling with a crisis of relevance, unable to come to terms with the changed political circumstances. The society was in the pro-democracy fight for so long that it forgot the other objectives for which it had been set-up.
The changed circumstances call for a lot of imagination regarding what the LSK should be doing for the benefit of the law and the administration of justice, its members, the courts and the public. The LSK must look at the state of the country and the challenges that Kenyans are facing and work out how to help craft solutions.
The most critical challenge that Kenya faces today is corruption. And in my estimation, the contribution of the LSK to the fight against corruption is not only woefully inadequate but, in many instances, the society is an integral part of the problem.
Let’s start with the role of the LSK in protecting the independence of judges and magistrates. The LSK has been vocal, and commendably so, in calling out the Executive and the Legislature when they have tried to upset the balance of power between the three arms of government. But the LSK has done nothing to protect the Judiciary from advocates.
I am thinking principally about the LSK elected representatives to the Judicial Service Commission. Although the debate has now started, the LSK has yet to address the issue of how advocates practising in court can become a threat to the independence of judges and magistrates when they are elected by the profession as JSC commissioners.
The LSK needs to address itself to how this power over judges and magistrates could be abused in the future to forge unhealthy contacts between the Bar and the Bench, creating platforms on which corrupt transactions can be executed between litigants and judicial officers.
The two LSK representatives in the JSC have a crucial say in who gets employed as a judge, what their terms of service are, supervision of the judicial officers and their discipline. They are in every respect the bosses of the judicial officers. For them to appear as advocates before the same judicial officers is a serious derogation of the independence of the Bench.
If the legal profession is to be taken seriously when it talks about the independence of the Judiciary, it must begin by protecting judges and magistrates from the intimidation they invariably feel when they have to make decisions on cases presented to them by advocates who have disciplinary mandate over them.
An advocate who wishes to represent the LSK at the JSC should be required to surrender practice before the courts of law during their tenure as JSC commissioners.
The restriction must include the law firm of the representatives and their practice partners and associates. The profession has no shortage of lawyers who don’t ordinarily practise law in court. They will be best suited for this assignment.
The LSK must be as strict with its members as it is with the Executive and the Legislature on the issue of independence of the Judiciary.
The removal of this intimidating influence over judges and magistrates has benefit to the rest of the LSK membership. Firstly, it makes litigation fair as there is no equality of arms between litigants when one of the parties is represented by an advocate who has the power to bully judicial officers to find in favour of his or her client.
Secondly, representatives who are not conflicted between their personal interest and their constitutional duties will act as more honest intercessors for the legal profession at the JSC.
It will be important too for the LSK to establish mechanism for an interactive relationship between its members and the representatives. The legal profession stands at the most vantage point to observe the work of the Judiciary and the seats the members have at the JSC should be used to place before the commission any matters of concern as reported by members.
It is a great shame on us advocates that we have had two representatives at the JSC for the last eight years yet the commission stands indicted as bearing the greatest responsibility for corruption and impunity in the judiciary today.
But this is not the only area where the profession has failed to be self-critical. We have failed to address how to stop law practice from being a facilitator of corrupt transactions. In this respect, I think of the use of the client account for the laundering of corrupt proceeds. This is a special bank account that every lawyer practising on his own is required to maintain for purposes of receiving money that belongs to his clients. Because it is part of confidential relationship between advocates and clients, the account has for many years been treated as sacrosanct. Advocates have protested when law enforcement agencies have targeted client accounts.
These instances have been rare but recently there has been an upsurge of warrants by investigation agencies to look into lawyers’ client accounts. The reason is that the client account has been turned into one of the paraphernalia for executing corrupt transactions.
The way it works is that members of a corruption cartel would instruct a law firm to receive proceeds of a corrupt transaction. The reason for the instruction is twofold. Firstly, the payment into the law firm makes the money trail go cold because the lawyer can fight disclosure requirements of the investigators by pleading advocate-client confidentiality. Secondly, the lawyer guarantees that every member of the cartel gets their fair share of proceeds. Since there is no honour among thieves, the members of the cartel are better assured when the money goes to an advocate to whom they all give instructions on the dividends due.
Client accounts are also used by individuals to launder proceeds of crime. Under the cover of law firms and their client accounts, terrorists, bank robbers, drug barons, pirates and all cadres of dangerous criminals have been able to secure financial services and to use their money away from the snooping eyes of policing agencies. Client accounts have also been used to hide money from tax authorities.
This is not just a problem in Kenya. The use of lawyers to enable illicit financial flows is an international problem. The most popular case of international money laundering hit the news in 2016 when a whistle-blower released some 11.5 million confidential documents from the law firm of Mossack Fonseca in Panama.
In what was known as the “Panama papers” scandal, evidence of money laundering and tax evasion was revealed affecting international crime syndicates, politicians and public officers from numerous countries, including Kenya. The rules governing the operation of client accounts in Kenya date back to 1966. They are irrelevant in the days we are living in. They were passed at a time when society was less populated and commercial transaction less frequent and less complex. Local cheques took four days to clear; 14 for international ones. There was no RTGS — in fact there was no internet.
There are so many developments in the world economy that the position of lawyers in commercial transactions needs to be reconceptualised if the integrity of law practice is to be secured.
Should, for instance, a law firm act as a banking institution for clients by receiving money on their behalf and then making disbursements as instructed? Where do we draw the line between law practice and banking? And if lawyers shall continue to offer these ancillary services, should they be required to do so on the strength of a lawyers practising certificate or should they be required to submit to other regulatory authorities? For instance, do lawyers have obligations to participate in the fight against money laundering by making returns to the Financial Reporting Centre when they receive monies on behalf of their clients?
These are the new challenges for the LSK. They are daunting and it’s no surprise that succeeding chair persons and members of the LSK Council would rather concentrate on the more popular pro-democracy role rather than deal with the real and current concerns.
The President and members of the council of the LSK need to remember the warning given by Prof Yash Pal Ghai and Prof Patrick McAuslan in their book Public law and political change in Kenya. Writing in 1970, the two professors said as follows regarding the irrelevance of the Bar then: “The Bar then is in a vulnerable position. It is in that position because of its racial composition, its seeming irrelevance to the needs of most Kenyans, and its apparent inability or unwillingness to do anything about improving its organisation and work. It may be that the Government would not tolerate a Bar which was more actively involved in society, but at least an effort could be made, and it is that which is so conspicuously lacking at present.”
Mr Mwangi, an advocate of the High Court of Kenya, is the legal adviser of former Prime Minister Raila