In this interactive series, we invite readers to send in questions to select public figures. This week, Isaac Okero, the president of the Law Society of Kenya, responds to your questions.
During the last General Election, a candidate for the National Assembly is reported to have lost a petition because of technicalities arising from the fact that his lawyer was found not to be a registered member of the LSK. Mr President, as the August elections draw near, many candidates risk falling prey to this group of lawyers. How can they avoid such situations?
Komen Moris, Eldoret
Komen Moris, Eldoret
The practice of law is the preserve of duly qualified advocates who possess practising certificates for the year of practice. Those who are not licensed and do practise are liable to prosecution before the Disciplinary Tribunal. Members of the public are urged to confirm with the LSK that the advocate proposed to be retained is licensed to practise. It is possible to ascertain the status of an advocate by looking up the name on the online search engine at http://online.lsk.or.ke/
What makes a majority of judges at the High Court to be reluctant to provide free and fair judgments in political cases and in lawsuits against the state? What mitigations have the Law Society of Kenya taken to address these anomalies in our judicial systems?
Christopher Amasava, Vihiga
The statement on “majority of judges” is an unfair and generalised condemnation that I think is contrary to the trends we have seen in recent times. The judges of the High Court generally apply the principles of the law to the facts of the case before them and have in recent decisions shown that they are prepared to act independently and fearlessly in upholding the Constitution and advancing the rule of law. The option to appeal from decisions of the High Court means that in instances where they may have erred the aggrieved party or any person affected may challenge the decision before the Court of Appeal.
Whenever gangsters are killed by the police, like happened recently with the shooting of the so-called “prettiest thug,” the LSK always comes out in defence of such criminals, without regard to the suffering they inflict on numerous victims. Does your existence depend on the murderous violence of gangsters against innocent Kenyans?
Erick Agade, Malaba
The right to life is enshrined in the Constitution as are the right to access justice and the right to be presumed innocent until the contrary is proved. These are rights enjoyed by every citizen of Kenya. It is in the defence of these rights that the LSK will always speak out and condemn any summary and extra-judicial execution of suspects.
Why did the LSK offer to mediate the dispute about the retirement age for judges despite the Constitution clearly stating that judges should retire at 70? Don’t you feel you were subverting the Constitution?
Andrew Maranga Ratemo, Malindi
The offer to mediate the retirement age dispute was to provide an avenue for resolution by a mechanism other than litigation, in the apprehension that the latter would involve the judges of the Supreme Court of Kenya litigating before their court against the Judicial Service Commission (JSC) itself comprised of judges from this apex court and chaired by the Chief Justice. It would be impossible to avoid the perception and reality of conflict of interests, acute embarrassment, and serious damage to the comity of judges and to public confidence in the institution. The offer was endorsed by both the judges disputing their retirement and the chair of then JSC Dr Willy Mutunga. It invoked Article 159(2)(c) of the Constitution that promotes mediation as a mechanism for the resolution of disputes. The events that followed the collapse of the mediation process proved the apprehension to have been accurate. Now that the court is reconstituted under the leadership of the current Chief Justice David K. Maraga the issue is now spent and the court has the opportunity to regain its stature.
What steps should a client who feels he has been fleeced by a lawyer take?
John Juma, Nairobi
It is recommended that such a client contacts the Advocates Complaints Commission or the Law Society of Kenya Secretariat at the earliest opportunity with full details of his complaint.
Many observers believe that the making of laws in County Assemblies has witnessed dismal public participation. This, in turn, means that the laws do not respond to the needs and aspirations of the majority in these counties. Sir, how can your members in these counties help salvage the situation even as we prepare to usher in the second lot of County Assemblies?
I agree that public participation in the making of county legislation has been slow to rise to the levels demanded by the Constitution and anticipated by the County Government Act. A Joint Task Force Committee has been formed with representatives from the LSK, the County Assemblies, the County Attorneys Forum, the Council of Governors Secretariat, the Senate and the Intergovernmental Relations Technical Committee. Through this committee, the LSK will support dispute resolution mechanisms working with the Intergovernmental Relations Technical Committee and will ensure that the branches of the LSK present in the counties facilitate the involvement of LSK members in offering technical support in the audit of draft legislation to ensure compatibility with the Constitution and other devolution statutes and assist members of the public in interrogating draft legislation as part of the public participation process.
Sir, some people believe that you are not as vibrant and outspoken as your predecessor even when the government is wrong on the application of the law and human rights — and worse, that your campaign for LSK presidency was influenced by some outside forces. Isn’t it time you explained yourself to the public?
Lawrence Onyango, Siaya
The notion that my campaign was influenced by outsiders is false and ultimately failed to sway members of the LSK. The society under my leadership has spoken out against acts infringing upon the rule of law and in violation of rights beginning with the conduct of the police during the protests against IEBC in April/May 2016 soon after the LSK elections, the attacks against the Judiciary and against specific High Court judges. But part of our protection of the rule of law must involve protecting the space that permits other voices that must be and are now heard in a free society, and allowing them to be heard rather than competing with them.
It is now about 10 years since the LSK went to Court to oppose the use of Electronic Tax Register machines by law firms. I withhold my opinion on this matter. Has the court case since been concluded?
The court case remains pending to date.
During the recent LSK Annual General Meeting, the media was locked out for the better part. This had never happened before and it left many asking what the lawyers were hiding. Why was the media locked out and is this the new trend? If LSK can withhold information from the public, what grounds would the society’s leadership stand on to call on the government to ensure the right of access to information?
Carolyne Moseti, Kericho
With respect, you must be confusing the recent 2017 AGM with the LSK AGM continuation of 2015 at the Bomas of Kenya which was the only general meeting of the society in recent times at which the press was momentarily barred by the council then in office until, under pressure from members present, the bar was lifted. At the 2017 AGM at the Hilton Hotel in Nairobi members of the press were visibly present and in fact placed their microphones on the podium to record the speakers.
Sir, during your campaigns you promised to refund the members the monies they had contributed towards the construction of LSK’s International Arbitration and Convention Centre within not more than 100 days after getting elected. What is happening? Is the Arbitration Centre project still on and when will lawyers see the fruits of their labour?
J.M.O Muganda, Kilifi
On the contrary, discussions on the failed International Arbitration Centre project have been on-going and featured in the recent 2017 AGM in Nairobi. What is different from before is that the conversation within the membership of the society is no longer marred by controversy or acrimony and does not play out in the press. At the 2017 AGM the membership was presented with a report on the financial audit of the project and resolved that a legal audit be presented to them before a final resolution on refunds is made at a Special General Meeting to be held later this year.
I had shares in Co-operative Bank but they were sold by an investment bank in 2014 and I never got the proceeds. I have reported the matter to the police and up to now no action has been taken. From a legal standpoint, what should I do to get back my shares?
Ednah Tum, Ainamoi
Much depends on the circumstances under which your shares were sold. It is difficult to advise on what steps to take without knowledge of the details of how they were sold. I would advise you to report the matter to the Capital Markets Authority (through its online complaints portal at https://portal.cma.or.ke/complaints/) for further assistance.
Why does the LSK not take part or engage in civil or criminal litigation on behalf of the public in cases of great public interest like the pending appeal by the IEBC on electoral laws that will have a major impact on how the national elections will be conducted?
Paul Gesimba, Nairobi
The LSK does indeed take part in civil and criminal litigation on behalf of the public. Most recently the LSK has undertaken litigation on the matter of the Capital Gains Tax and its impact on transfers of land. Some of the cases require the LSK to approach the court as amicus curiae in order to be in a position to assist the court in an interpretation that is in line with the constitution. The IEBC appeal is a case in point.
What is LSK’s mandate over the Kenyan society?
Francis Njuguna, Kibichoi
The legal mandate of LSK is stipulated at Section 4 of the Law Society of Kenya Act, 2014 which sets out its functions and objects. They include to assist the government and the courts in matters relating to legislation, the administration of justice and the practice of law, to uphold the Constitution and advance the rule of law and the administration of justice, to ensure that all persons who practise law or provide legal services in Kenya meet the standards of learning, appropriate professional competence and conduct for the legal services they provide. Others are to protect and assist the public in matters relating to or ancillary or incidental to the law, to set, maintain and continuously improve the standards of learning, professional competence and professional conduct for the provision of legal services, to determine, maintain and enhance the standards of professional practice and ethical conduct, and learning for the legal profession, to facilitate the acquisition of legal knowledge by members of the society and ancillary service providers — including paralegals through promotion of high standards of legal education and training, to represent, protect and assist members of the legal profession in matters relating to the conditions of practice and welfare, and other related functions.