Eunice Nganga & Another V Law Society Of Kenya & Another  EKLR
|Petition 235 of 2017||14 Mar 2019|
Enock Chacha Mwita
High Court at Nairobi (Milimani Law Courts)
Eunice Nganga & another v Law Society of Kenya, Attorney General & Chief Registrar of the Judiciary
Eunice Nganga & another v Law Society of Kenya & another  eKLR
The requirement of mandatory membership to the Law Society of Kenya and all its attendant requirements in order to practice in Kenya is constitutional
Eunice Nganga & another v Law Society of Kenya & another  eKLR
Petition 235 of 2017
High Court at Nairobi
E C Mwita, J
March 14, 2019
Reported By Flora Weru and Kakai Toili
Constitutional Law - constitutional petitions - institution of constitutional petitions - where a person institutes a constitutional petition on behalf of another - whether a person could institute a constitutional petition on behalf of another person -Constitution of Kenya 2010, articles 22 & 258.
Constitutional Law - fundamental rights and freedom - freedom of association -limitation of the freedom of association - mandatory requirement for advocates practicing in Kenya to be members of the Law Society of Kenya - mandatory requirement by the Law Society of Kenya for advocates to apply and be issued with practicing certificates - whether those mandatory requirements infringed upon the freedom of association and thereby unconstitutional - Constitution of Kenya, 2010 article 36; Advocates Act, sections 22(1)(b)(c) and 23; Law Society of Kenya Act, section 7
Constitutional Law - constitutionality of statutes-presumption of constitutionality of statutes-rationale - what were the factors to consider in determining the constitutional validity of a statute - claiming challenging the constitutionality of the mandatory requirement for advocates to be members of the Law Society of Kenya – claim challenging the mandatory requirement by the Law Society of Kenya for advocates to apply and be issued with practicing certificates - Constitution of Kenya, 2010 article 36; Advocates Act, sections 22(1)(b)(c) and 23; Law Society of Kenya Act, section 7 - Advocates (Continuing Professional Development) Rules, 2014 Rules 10 and 11
The petitioner filed the instant petition challenging the constitutional validity of sections 22(1)(b), (c) and 23 of the Advocates Act; section 7 of the Law Society of Kenya Act; and regulations 10 and 11 of the Advocates (Continuing Legal Education) Regulations, 2004 (regulations). She contended that those provisions violated the Constitution for making it mandatory for all advocates be members of the Law Society of Kenya and by making continued professional development courses a prerequisite to getting annual practicing certificates. In the petitioner’s view, both mandatory requirements violated her fundamental freedom of association. The respondents stated that the petitioners did not have locus standi and that the institutional framework mechanism under the Advocates Act, the Law Society of Kenya Act and the attendant regulations were meant to create conducive environment for the development of professionally competent advocates with clear channels of responsibility thus engendering transparency and accountability.
- Whether the requirement of mandatory membership to the Law Society of Kenya by advocates who intended to practice in Kenya as provided for under section 7 of the Law Society of Kenya Act was unconstitutional for violating the freedom of association of advocates.
- Whether the requirement of mandatory application and issuance of a practicing certificate to advocates who want to practice in Kenya as provided for under section 22 (1) (b) and (c) and 23 of the Advocates Act was unconstitutional.
- Whether rules 10 and 11 of the Advocates (Continuing Professional Development) Rules, 2014 by providing for the mandatory requirement for continued professional development courses by advocates as a prerequisite to getting annual practicing certificates were unconstitutional.
- Whether a person could institute a constitutional petition on behalf of another person.
- Who bears the burden of proof in constitutional petitions?
- What was the rationale of the presumption of constitutionality of statutes?
- What were the factors to consider in determining the constitutional validity of a statute?
Relevant Provisions of the law
Constitution of Kenya, 2010
(1) Every person has the right to freedom of expression, which includes—
(a) freedom to seek, receive or impart information or ideas;
(b) freedom of artistic creativity; and
(c) academic freedom and freedom of scientific research.
(2) The right to freedom of expression does not extend to—
(a) propaganda for war;
(b) incitement to violence;
(c) hate speech; or
(d) advocacy of hatred that—
(i) constitutes ethnic incitement, vilification of others or incitement to cause harm; or
(ii) is based on any ground of discrimination specified or contemplated in Article 27 (4).
(3) In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.
1) Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.
(2) A person shall not be compelled to join an association of any kind.
(3) Any legislation that requires registration of an association of any kind shall provide that—
- registration may not be withheld or withdrawn unreasonably; and
- there shall be a right to have a fair hearing before a registration is cancelled.
Advocates Act Cap 16
(1) Application for a practising certificate shall be made to the Registrar—
- by delivering to him an application in duplicate, signed by the applicant specifying his name and place of business, and the date of his admission as an advocate;
- by producing evidence satisfactory to the Registrar that the applicant has paid to the Society the fee prescribed for a practising certificate and the annual subscriptions payable for the time being to the Society and to the Advocates Benevolent Association; and
- by producing a written approval signed by the Chairman of the Society stating that there is no objection to the grant of the certificate
- Every advocate to whom a practising certificate is issued under this Part shall thereupon and without payment of any further fee, subscription, election, admission or appointment, and notwithstanding anything contained in the Law Society of Kenya Act (Cap. 18) or in any regulations made thereunder, become a member of the Society and the Advocates Benevolent Association and be subject to any provision of law or rule of the Society and the Advocates Benevolent Association for the time being affecting the members thereof.
- Every advocate who has become a member of the Society under this section shall remain a member until the end of one month after expiration of his practising certificate, unless his name, whether at his own request or otherwise, is removed from or struck off the Roll, whereupon he shall cease to be a member of the Society.
- (2A) The Society shall issue to every advocate registered with it a stamp or seal bearing the advocate's name, admission number and the year of practice in such form as may be approved by the Council of the Society and prescribed in regulations, and such stamp or seal shall be affixed on every document drawn by such advocate and lodged for registration in any registry in Kenya or issued for any other professional purpose.
- An advocate who has become a member of the Society under this section and who is suspended from practice shall not be entitled during the period of the suspension to any of the rights or privileges of such membership.
Law of Society Act
(1) The membership of the Society shall consist of—
- any person who has been admitted as an advocate and whose name has been entered into the Roll of Advocates kept under section 16 of the Advocates Act (Cap. 16);
- any person admitted to membership under section 8 of this Act; and
- any person elected as an honorary member of the Society under section 9 of this Act.
(2) Notwithstanding subsection (1), a member of the Society whose name has been, as a result of disciplinary proceedings, struck off the Roll of Advocates shall not be a member of the Society during the period of expulsion.
(3) A person who has been expelled from membership of the Society shall not be re-admitted as a member of the Society without the authority of a special resolution.
Advocates (continuing Legal Education) Regulations 2004
10. Standards for programme or workshop
(1) A programme or workshop shall meet the following standards—
- the content shall be designed so as to improve the professional standards, ethics and competence of the participants;
- the faculty shall possess the practical or academic experience necessary to conduct the programme or workshop effectively;
- resource materials shall be of high quality, useful and properly prepared;
- the programme or workshop shall be presented in a suitable setting, conducive to a good educational environment.
(2) A provider shall, at the request of the Committee, provide the Committee with information concerning a programme or workshop conducted by the provider, including—
- any documents describing the programme;
- the qualifications of anticipated faculty;
- the method of presentation of materials; and
- and any other relevant information that the Committee may require.
Duties of Advocates, the Committee and Providers
11. Duties of advocate
- An advocate who has undertaken continuing legal education shall provide the Committee with a certificate of attendance, information relating to the programme attended, the period of attendance and the provider of the CLE.
- Every advocate shall maintain records relating to his or her CLE in a manner sufficient to establish compliance with CLE requirements.
The Advocates (Continuing Professional Development) Rules, 2014
For the purposes of these Rules, private study is not an approved activity except where it involves the private study of audio, video or electronic material and such study is considered an approved activity by the Committee and for which an advocate may accrue only one-unit.
Regular or pro bono legal work is not an approved activity except for legal work that is for the purposes of the Legal Aid Programme and for which the Committee shall determine how many units an advocate may accrue in a CPD year for that work.
- The issue of locus standi (right to bring a legal action) was no longer a novel one in constitutional petitions. Article 258 of the Constitution resolved the issue when it allowed every person to institute proceedings contending that the Constitution was being violated, infringed or threatened. Proceedings could also be instituted on behalf of the person or others. A petition that contended the impugned provisions were unconstitutional would appear to be perfectly reasonably within the ambit of public interest. If the provisions were unconstitutional, they violated the Constitution and were, therefore, against public interest. The issue of locus standi had no legal basis.
- There was a rebuttable presumption that a statute or provision was constitutional. The burden was always on the person alleging constitutional invalidity to prove the alleged unconstitutionality. The reasoning being that the Legislature being peoples’ representative understood the problems people faced and, therefore the laws enacted were intended for resolving those problems.
- To determine constitutional validity, the court had to examine the purpose or effect of the impugned statute or provision. The purpose of enacting a legislation or the effect of implementing it could lead to nullification of the statute or its provision if found to be inconsistent with the Constitution.
- The legal profession was unique, for it dealt with issues that were dissimilar to those of other professions. It would be difficult to argue, that advocates could join any other profession and still practice the profession. That was because advocates dealt with clients and were accountable to the clients and the Court. The obligations of members of the profession, including holding client funds in the advocate-client accounts regulated by rules contained in the Advocates Act was unique to the profession. It was not clear how one who was not a member of the 1st respondent could be subjected to regulation by the professional body responsible for the wellbeing of the profession body of advocates.
- A different organ could not regulate the legal profession. The petitioners had to be members of the 1st respondent compulsory membership did not violate the constitutional guarantee of freedom of association. The legal profession was unique compared to other professions. The services advocates rendered could not be understood by many outside the legal profession. The sentiments and suggestions the petitioners advanced in support of their quest, could not apply to the legal profession. Self-regulation was the best way of ensuring a robust and effective advocates’ body, and that obtained in other countries of the world where the legal professions regulated themselves.
- There was no inconsistence between the impugned provisions and the Constitution. The legal profession was a special category and its operations were regulated in a manner that could, in a way, be seen as limiting rights and fundamental freedoms of members. However rights under article 33 and 36 of the Constitution were not absolute. They were capable of limitation in terms of article 24(1) of the Constitution so long as the limitation was reasonable and justifiable in an open and democratic society.
- Section 22 of the Advocates Act was on the application and issuance of practicing certificates. It was a form of regulation on the person to whom a practicing certificate should be issued. That was meant to weed out those who were not qualified members; those suspended and those struck off the Roll from practicing or holding themselves out as advocates. The impugned section 22(1)(b) required one to produce satisfactory evidence that s/he had paid the applicable charges to the 1st respondent. The charges were for purposes of sustaining the 1st respondent’s activities for the fulfilment of its mandate under the Act. That was not inconsistent with the Constitution; the petitioners had not shown how the requirement to pay charges to their professional body violated the Constitution to render the provision constitutionally invalid.
- Section 22(1)(c) of the Advocates Act required one to produce a written approval signed by the President of the 1st respondent to the effect that there was no objection to the issuance of the certificate. That was meant to ensure that only qualified persons and those that had met their obligations to the 1st respondent, were allowed to take out practising certificates. The requirement was intended to protect the profession and its members from intrusion by non-members as well as protect the profession from being infiltrated by quacks. That was a positive step in the protection of the society and those seeking services of professional members of the 1st respondent.
- One of the reasons why a practicing certificate was issued was to disqualify any person who had been suspended from practice. The occasion for issuing the certificate was also the occasion for checking, among other things, that the applicant was an admitted Advocate and had paid the prescribed practicing fees to the 1st respondent as well as to the Advocates Benevolent Association. There was no constitutional fault in section 22 (1) (b) and (c) of the Advocates Act.
- Section 23 of the Advocates Act served to determine those who joined the profession as members of the 1st respondent. Section 23 was clear that once one applied for the practising certificate in terms of section 22 of the Advocates Act, and the Chief Registrar was satisfied with the suitability to issue the certificate, the issuance conferred on the holder the benefit of joining a member of the 1st respondent. That was; membership to the 1st respondent was reserved to those who were qualified and on the Roll of Advocates. Doing away with that provision as the petitioners craved, would cause confusion in the legal profession because it would be infiltrated by quacks which would ultimately damage the affairs of the 1st respondents, including issues of discipline of its members.
- Kenya’s Bill of Rights was very expansive and protected rights and fundamental freedoms of every person. Although article 33 and 36 of the Constitution formed part of the provisions in the Bill of Rights, the rights under those articles were not absolute. The articles had to be read in conjunction with article 24(1) of the Constitution so that the limitation, if any, had to be reasonable and justifiable in an open and democratic society.
- The limitation the petitioners complained of was by law, the Advocates Act and the Law Society of Kenya Act and Rules. The impugned law was reasonable in that it sought to protect the profession and members of the public who sought services from qualified and professional advocates. To that extent, only qualified advocates and only advocates holding practicing certificates should render professional services. That made the limitation justifiable, for it was for the benefit of the profession and the public. There was no less restrictive means of dealing with the situation than through the impugned provisions.
- The Advocates (Continuing Professional development) Rules, 2014 required advocates to regularly attend programmes of the 1st respondent as a way of enhancing knowledge and professional skills. One was required to accumulate points which would be considered when applying for the annual practicing certificate. A certificate could not be issued where one had not satisfied those requirements.
- The law kept changing and so were practice matters. Members of professional bodies such as those of the 1st respondent had to keep themselves abreast with new developments in the law and practice. The only way they could do so was through regular training. Attending programmes initiated and developed by their society for their benefit could not be deemed unconstitutional. That was because the programmes were meant to enhance the knowledge and skills of the members. If the petitioners’ argument was to carry the day, it would render the profession moribund in terms enhancing knowledge and skills.
- The petitioners had failed to demonstrate the constitutional invalidity of the impugned provisions, or how they violated any of the rights in the Bill of Rights. As a professional body the 1st respondent had the mandate to discharge for the benefit of its members and the public.
Petition dismissed, each party to bear own costs.