Chief Justice’s Remarks Made At The Law Society Of Kenya Luncheon, Hilton Hotel, Nairobi, 26th April 2012
April 27, 2012
The Chairman of the Law Society of Kenya,
Council Members of the Society,
Chief Registrar of the Judiciary,
My friends and colleagues,
That the transformation of the Judiciary continues at a remarkable pace is no longer in doubt .The process has taken a multifaceted dimension in conformity with the framework whose building blocks I have heard occasion to outline. Indeed, the momentum for the reform of the Judiciary is Unstoppable despite the challenges and obstacles that lie ahead. It is not my intention to highlight the various aspects of reform that are being undertaken since the same are in the public domain . However, the ongoing vetting of Judges and Magistrates is one process whose mention I cannot wish away.
Today, our country is in the grip of a debate about the decisions of the Judges and Magistrates Vetting Board with regard to the justices of the Court of Appeal.
While I acknowledge that the vetting exercise is a constitutional and statutory response to public demand for integrity, transparency, independence and competence in the Judiciary, it would be remiss of me not to recognise the role that the Law Society of Kenya has played in delivering this process, which has been so long in coming. For it is the loud protestations of the LSK leadership and members that have ultimately given voice to the public frustration with the competence gaps, integrity deficits, weak spine and breaches in efficiency that characterised the Judiciary for so long.
After successfully campaigning for the reform of the Judiciary, it is lamentable that the Law Society of Kenya has not been too keen to embrace a transformative culture within its ranks. It is a great irony that lawyers, who have been among the most vocal champions of a new constitutional order, appear to take only timid steps to bring their practice into conformity with the high standards of conduct implied in the Constitution.
It is no longer contested that the landscape on which the law is practised in Kenya has radically changed. Article 159 of the Constitution clearly sets out several principles to guide how courts will administer justice, and specifically demands expeditious delivery of justice without undue regard to procedural technicalities. I am skeptical that legal professionals who have become gurus of technicality will thrive in the new constitutional environment. The Law Society has an obligation to help us in our efforts to transform the Judiciary. At a time when critical Institutions are being called upon to embrace a culture change so as to serve the cause of Justice effectively, efficiently and impartially, isn’t it time the law society did an introspection with a view to finding out if and how its members contribute to the perversion of justice in the Court Corridors? In what ways do lawyers, for example, contribute to the case backlog through frivolous interlocutory applications that are designed to defeat the ends of Justice? In what ways do your members participate in the disappearance of Court Files from the registries? Lawyers who are engaged in acts such as these should be banished from your ranks; and this breed of legal practioners should know that they lack the moral authority to demand of us in the Judiciary to reform. They form part of that vile axis that actively resist progress and it is about time they are called out by their peers.
Alternative dispute resolution is encouraged in the Constitution, and I imagine that this would alter the advocate’s approach to work. Unless the Law Society of Kenya leads the way in transforming its members, I fear that there will be a public outcry for the vetting of lawyers – an outcry that will quickly become impossible to ignore. That transformation cannot be haphazard. It must be deliberate, systematic and timed.
The reason for this is simple: If integrity deficits, intellectual lassitude, executive dependency and moral vacuity are not acceptable [on the Bench] among judges and magistrates, it should follow that they cannot be tolerated [at the Bar] among lawyers.
When I took office, one of my earliest appeals was to the Bar, as the Judiciary’s partners in the administration of justice, to radically lift the ethical standing and conduct of its members. Cooperation between the Bar and the Bench would be nigh impossible in an environment where there is a trust deficit and no confluence of values. LSK must be the guarantor of professional legal services that not only respond to client needs but also further the ends of justice. It is within its power to redefine the legal profession away from the stereotypes generated by the sharp practice of a few individuals.
Future advocacy must necessarily be of a higher standard: with a bias towards deeper research, written briefs and expert testimony rather than the oral arguments that often serve only to delay proceedings. The quality of our jurisprudence from the Bench will only be upgraded if the quality of the Bar improves.
Our Constitution is a masterpiece of the interlocking nature of many disciplines and it is to the lawyers that posses a learning posture that the greatest rewards will go. Law is a bouquet of disciplines, and, in the practice of law in this country, I would like to see the evidence of this truism. The Supreme Court, for instance, is thirsty for the development of a robust jurisprudence built on a strong fountain of Bar intellect.
Forty years ago, when I joined the Law Society of Kenya as a fresh advocate of the High Court, it never occurred to me that a time might come when I would be required to go on strike or boycott work. While Article 41 of the Constitution grants every worker the right to strike, I am a little puzzled when advocates engage in industrial action. It begs the question as to whom the strike is meant to punish because ultimately, those who are negatively affected by such actions are often the clients who are paying for representation.
We in the Judiciary will engage with advocates and any other group on issues that might emerge from time to time. However, intimidation and ultimatums are no way to begin or sustain dialogue. Further, as part of our transformation, our courts are independent and beginning to assert themselves in a manner rarely seen before. I want members of the Bar to know that if your practice of law was built on the foundation of intimidation of judges and magistrates, or on political networks and patronage, this is not your moment. This means that magistrates and judges will not be bullied, browbeaten or intimidated by advocates – regardless of how exalted their status is in society or whom they represent. The confidence and competence of the Judiciary is on the surge; the conduct and standards of the Bar should also be on the mend!
Advocacy will need to change because the courts are changing. Courts will protect their independence and enforce their orders strictly. Advocates must remember that they do not carry the title of officer of the court in vain. It is incumbent upon every advocate to advise her or his clients that court orders are never issued in vain. If anyone imagines they can ignore or disobey a court order and get away with it, they should perish the thought. This time is different. I want to put you and the general public on notice. Kenyans have suffered long enough because of a dysfunctional judicial system and the legal profession has contributed enormously to this state of affairs. If you doubt me, just look at the Advocates Complaints Commission Reports.
Beyond being a professional association, the Law Society of Kenya is an important corporate citizen of this country with great voice, influence and the capacity to act as the anvil upon which the leadership of this country can be forged. It is hardly surprising that the former chairperson’s of this society have gone forward to offer their talents to the service of this country in wider capacities than just leading their professional association.
As a former chairman of this society, I am hesitant to make the next statement lest I be accused of being stuck in the good old days, but this must be said. The stature of the Law Society of Kenya has been diminished significantly in recent years, and with it, the moral space it once occupied as of right, has contracted considerably. LSK needs to reclaim its position as an important site for intellectual rigour. Its leadership must give serious thought to their pronouncements, and the membership must stay engaged in the environment in which they live and work.
The advice of a respected lawyers’ organisation can prevent a leadership, a government and even a country from making errors that could have negative ramifications in the future. At a time when the government made it impossible to register not-for-profit organisations to work in the human rights and democracy sector, the Law Society of Kenya stood up and provided not just ideas, but also space for progressive forces to rally and to organise.
Our experiences with numerous ongoing public debates in Kenya suggest that the LSK can still play an important role. It can only play that role if it enjoys respect first as a collective of individuals who take their profession seriously, but also as an organisation that places a premium on providing intellectual leadership.
Dr. Willy Mutunga, D.Jur, SC, E.G.H.,
Chief Justice & President of the Supreme Court of Kenya