If a High Court Judge – after being accused of corruption and prefer ring to resign rather than face an inquiry into his conduct – sets himself up as a consultant, can he be hindered from pursuing this line of business?

The Law Society of Kenya is categorical that any Judge who purports to set himself up as a consultant is breaking the law. It is of the view that as the dishonoured Judges do not hold practising certificates, they are unqualified persons under the Advocates Act and cannot practice as consultants. This raises the basic question what it means to practice law.

The Advocates Act does not define the term “practising” but to my mind, practising law would be the use of legal training in the carrying out of legal business on behalf of a client. For one to practice law, he must first of all have a client. Secondly he must use his legal training. Lastly, he must carry out some legal business on behalf of that client.

If a person provided a service purely as a consultant, it would be stretching too far to regard him as carrying out legal business on behalf of the client. The position of the consultant would be no different from that of a law teacher who is asked to give an opinion on the state of the law. There is no requirement in law that only those people who hold practising certificates have the right and ability to say what the law is.

On this point alone, the Judges are protected by section 79 of the Constitution. They have a right to communicate their ideas and information to any person without hindrance. The constitution does not limit this right on the grounds that the ideas or information are of a legal nature. Neither does it require that the ideas and information be communicated for free. Any limitation of this nature is therefore unconstitutional.

The other objection raised by the LSK is that some firms are employing these former Judges. Again, this does involve a stretching of the law. Section 41 of the Advocates Act provides that no advocate shall, in connection with his practice as an advocate, employ or remunerate any person who to his knowledge is disqualified from practising as an advocate. But the section proceeds to provide that such disqualification should be by reason of the fact that the person’s name has been struck off the roll or the person is suspended from practising as an advocate.

The section clearly says that it does not affect any person who has had his name struck off the roll at his own request. None of the Judges fall under any of these categories. Their names are still in the roll of advocates. They have not been suspended from practising. All they do not have is a practising certificate, which I doubt any wants to apply for just yet knowing everyone’s feelings about them.

But nonetheless, there is no prohibition from employing them to do research or otherwise consult. In fact, the Advocates Act even allows them to be employed to draw or prepare documents for advocates. Section 34, – which prohibits any person who is not an advocate from preparing legal documents, protects from this prohibition “any person employed by an advocate and acting within the scope of that employment”. So long as the Judges remain as employees of advocates, and prepare such documents for use by the




advocate, they are well within the law.

One issue on which the LSK is correct to complain about is that in some cases, these Judges are acting as partners to practising advocates and taking a share of the advocates fees. This may be illegal. It is an offence for any advocate to agree to share his profits with any person who is not an advocate. The rule is meant to prevent advocates from going into business with persons who are not bound to observe the rules of practice that bind the advocate. You can imagine a partnership between an advocate and a policeman, or between a doctor and an undertaker. But I say, “may be illegal” because Section 37 which lays down this prohibition makes an exception of “or other duly qualified legal practitioner”.

Since the Act does not define what “other duly qualified legal practitioner” means, I can foresee some adventurous advocate stretching the definition to include a former Judge who does not hold a practising certificate. But behind all this legal positioning is the politics of the situation. The Judges are out of work and need to earn a living. They know very well that if they apply for a practising certificate, the LSK will do all it can to hinder them from obtaining one. The Council of the Law Society of Kenya has stated previously that it will do so. The Judges are therefore looking for a way to use their skills to earn a living without infringing on the law. On the part of the LSK, the only way it can bury the former Judges is by charging them with dishonourable conduct before the disciplinary committee.

This way, they can get them struck off the roll of advocates and thereby become unemployable by any member of the profession. The problem for the society is that such a move might appear sadistic. You don’t step on a man who is already down. If the LSK can invite former President Moi, to share his wisdom with lawyers over lunch, how will it look when it hounds former Judges out of the profession?

The other problem is that to take Judges to the disciplinary committee to start an expensive and involving procedure. The society is therefore using peer pressure to deal with the Judges. In its warning, it tells the members of the society: “We all know the circumstances that have led to the dismissal of the disgraced Judges.” But we also all know the universal presumption of innocence: Every man is to be presumed to be innocent, until proved guilty!