It makes nonsense of the initiative being carried on today if we then have to go back to the breeding grounds and pull out another 23 corrupt lawyers who will proceed to make another 23 corrupt judges. As the cleanup starts, we should ask ourselves how the judiciary became so corrupt. We cannot excuse the gravity of the situation by referring back to the previous regime and how it appointed judges. We must look at the status of the legal profession as a whole.
Is the status of the judiciary an indication of the problems of the larger profession? It has always been my position that it is. All of the judges now under investigation have studied in our faculty of law, have been practicing advocates. Did they become corrupt, if indeed they are, when they joined the bench or were they predisposed to it from the very beginning?
The legal profession in Kenya is devoid of any philosophical essence. It means nothing to be an advocate of the High Court of Kenya apart from having passed a law degree exam and done four months of study at the law school. The profession has no sense of role and ethic, apart from when the government is infringing on people’s liberty. The legal profession has not come up to be an integral part of the industry, public administration or social morality.
This situation as I argued in my book The Black Bar has been brought about by a failure of the training institutions to identify the purpose for which we train people to join the profession. Do we do it for the society or so that we can create employment for some people in the economy?
To train people to carry out a role for the benefit of the society, we must indoctrinate them with the aspirations of that society. If we train lawyers to be of use to the aspirations of Kenyans, we must tell them that the legal profession stands in a very strategic position to fight corruption.
Every lawyer should have been trained to uphold these ideals. It must also be a condition of the continued membership of the profession to carry out these ideals in their professional work. But when we train lawyers just as a way of creating employment for some group of bright students we expect nothing from them. We just pray that they pay their taxes. We don’t establish rules to ensure that they observe particular standards of behavior and conduct.
That is where the legal profession is today. It is bad for a judge to receive a bribe but no one takes any action against the lawyer who gives it. Further than being evidence of our laxity as a country in the administration of our professionals, this situation causes a vicious circle. Firstly, because judges come from the legal profession. Bad lawyers can never make good judges. Corrupt lawyers will make corrupt judges. It makes nonsense of the initiative being carried on today if we then have to go back to the breeding ground and pull out another 23 corrupt lawyers who will proceed to make another 23 corrupt judges. If we want a clean judiciary, we must also attend to the breeding ground of all judges; the legal profession.
Secondly, the legal profession is the main channel through which bribes pass from clients to judges. A corrupt legal profession will therefore remain as a standing temptation to any new judge. I believe even the most honest judge will get weak in the knees when offered a discreet cash incentive of ksh .20 million. Human beings are not angels. They are predestined to greed and sin. How honest are we being to ourselves to imagine that the next judges, bred in our legal profession, will resist the tempting advances of corrupt lawyers? How many will survive?
There are several ways in which we must deal with the legal profession. Any advocate who is implicated in the current investigation of corruption in the Judiciary must be disbarred. If the judge is morally unfit to be called a judge of the High Court of Kenya, then the advocate is unfit to be an Advocate of the High Court of Kenya. We must also require that members fight corruption in the profession.