Lawyers have always been recognized as the protectors of the Rule of Law. Indeed, when Shakespeare wrote in Henry V1 “The first thing we do, let’s kill all the lawyers”, it was a testimony to the fact that where lawyers honestly discharge their duty to society, they guard against lawlessness and become the single most principal assurance of the “Rule of Law”.
Safeguarding the Rule of Law is one of the areas where Kenya has performed badly, giving way to impunity and utter chaos and left the weak and the poor absolutely at the mercy of the rich and the powerful. “The Black Bar” looks at this history and exposes how lawyers in Kenya have in history been accessories to the derogation of the rule of law.
During colonial times, lawyers watched as the imperial British government entrenched a cruel and racist administration under which the native African enjoyed neither human rights nor an equal protection of the law. In fact, the colonial government designed a legal system specifically for the natives that was founded on the premise of the sub-humanity of the African. Lawyers defended that system and greatly thrived under it.
After independence, as Africans joined the legal profession, lawyers again stood by as the Kenyan Constitution was dismantled and, in the words of J.M. Kariuki, ‘Kamau was substituted for Smith, Odongo for Jones and Kiplagat for Keith’. The cruel racist colonial administration was replaced by a home grown 1oppressive system of government which though emphatic about the right to equal protection of the law for all often became the threat from whom the people needed protection.
In many instances, the legal profession acceded to the bad governance and abuse of authority that followed independence. In other instances, lawyers joined the system of government itself as active participants in the design and implementation of a legal system that not just enabled but justified the excesses of the day. Lawyers became accessories of the State and the powerful individuals on how to use the law to perpetuate and defend impunity and oppression.
Yet, in other instances, the lawyers became a threat in their own right, preying on Kenyans and earning the description “Kenya’s whities or the wood pile”.
It took a committed revolutionary group of Kenyans in every sector of the society to see a change in the downward trend Kenya had taken since independence. Among the clergy, the politicians, economists, sociologists and lawyers, young patriotic Kenyans raised their voices with the common purpose of changing the fortunes of their countrymen. I remember these years very fondly, though I did spend a large period of that time in a jail cell as a political detainee for raising my voice in support of the struggle.
Unfortunately, the success at changing the premises upon which mis-rule had been established was short-lived as lawyers again joined and supported reactionary movements.
They concocted philosophies and hypothesis to justify the resistance to reform and designed ways to use institutions of the law to entrench a new form of authoritarianism. Lawyers helped authoritarianism to exist by law.
In the process, the lawyers themselves, as they had done before, became a threat to the people by their own right, and became accessories to all the excesses of 2bad governance. In this latter phase, financial corruption and appointments to high public offices became the currency with which lawyers were rewarded for aiding and abetting bad governance, an unfortunate development that started in the 1990’s and goes on till today.
The correlation between the Rule of Law and the health of the legal profession is undeniable. Lawyers are first and foremost the “Knights of the Rule of Law”. They are commissioned to fight in the battles where bad people attempt to oust the law and rule by their passions; where legal processes, procedures and institutions are being knelt on by bad men, or manipulated to assist in the pursuit of nefarious objectives.
On a wider perspective, the legal profession is the nursery in which the Judiciary is raised. Judges, on their part, are the custodians of the Rule of Law. It is their mandate to superintend the law and ensure that it always is effective in creating and maintaining a society where no person is above the law and that all persons enjoy equal protection of the Law.
The first step at establishing and protecting the Rule of Law must therefore be addressing the health of the legal profession. There can be no Rule of Law without a healthy legal profession. Without lawyers fighting against those who promote bad governance and judges pro-actively ensuring that those battles are won, the citizen is left defenseless and at the tender mercies of unscrupulous politicians and merchants who ransack taxes and other public resources.
It is time we pay serious attention to the health of Kenya’s Legal Profession. Beginning from the study of law, admission to advocacy, and professional ethics to terms of employment, we must ensure that we have a profession that is capable of giving Kenyans honest lawyers and judges capable of protecting and upholding the Rule of Law.