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Q and A Q and A

Our guest this week is Law Society of Kenya Chairman, OKONGO OMOGENI. He answers your questions QUESTION: Why has the Law Society been quiet on the recently released Kroll report that detailed massive corruption and looting of billions of taxpayers’ money?

— George Gopal, Nairobi.

ANSWER: LSK’s position on matters relating to corruption has been steadfast. We abhor and condemn corruption in all its forms.

With regard to the Kroll report, the society has publicly called upon the Kenya Anti-Corruption Commission to expedite investigations, prosecute the culprits and, where appropriate, seek repatriation of the looted funds. What efforts is LSK making to ensure outdated laws are scrapped or modified to bring true justice to the common mwananchi?

— Fredrick Correa, Nairobi.

The society has a statutory mandate under Section 4 of the LSK Act to advise the Government on legislation and to help the public in such matters.

We act in close collaboration with the Law Reform Commission, Parliament, the parliamentary standing committee on legal affairs and administration of justice and lobby groups to recommend amendments or repealing of archaic laws. For example, LSK supports the small claims courts legislation that will encourage access to justice. What is your view of the widely held view that small offenders are often heavily punished, while big looters are given modest fines which they pay easily?

— Emily Nandwa, Kakamega.

I do not agree. There are clear and objective guidelines on sentencing for magistrates and judges. Each case must be looked at on its own merit. What is LSK doing to recover money which has been swindled by lawyers from clients?

— Ombasa David Mangabo, Nairobi.

The theft or misappropriation of clients’ money or trust funds is one of the most serious offences that an advocate can commit. The advocates disciplinary committee is empowered to order restitution. We have increased the committee’s sittings to twice a week to expedite the conclusion of complaints against lawyers. In addition, the committee can issue a warrant of attachment to enforce such payment. What are the requirements for a Ugandan advocate to practise in Kenya.

— Okello L. Kampala.

LSK has approved cross-border practice in East Africa. However, such a lawyer must have been admitted to practice law in Uganda and must petition the Council of Legal Education in Kenya and meet the normal standards of admission to the bar in Kenya. Will you comment on reports that many lawyers are currently going through a rough time?

— E. Kinyua, Nairobi.

Lawyers, like other Kenyans, are subject to economic vagaries. The statement is too general and does not apply to a majority of lawyers. What progress have you and your predecessors made in the last four years of President Kibaki’s leadership in maintaining justice in the courts without political manipulation?

— Hassan Abdalla, Garissa.

The judiciary has in the past four years enjoyed a lot of independence from the Executive.

LSK is committed to strengthening checks and balances in the various arms of government. For example, the society has in the past condemned attempts by Cabinet ministers to interfere with sentencing by the courts. Certainly, I cannot speak for my predecessors. Did LSK not put its credibility on the line by opposing the two-way cheque system which was meant to tame wayward lawyers?

— Titus Murithi Kinoti, Meru.

There are isolated incidents of fraud by lawyers, particularly in accident claims. You cannot fail to get a bad apple in a basket. However, most lawyers are honest people and should not be visited with the sins of these fraudsters. LSK opposed the two-cheque system because it violated client-advocate confidentiality. What is the absorption rate of qualifying advocates into the job market? In what circumstances will an advocate be barred for life from practising?

— Githuku Mungai, Nairobi.

Kenya has more than 5,000 lawyers in a population of nearly 34 million. There are many sectors that absorb lawyers, including private practice, the judiciary, government, private companies and academic institutions.

There is still ample opportunity for absorption. Advocates may be struck off the roll by the disciplinary committee for professional misconduct. Such an advocate can be reinstated only after five years and only on the recommendation to the chief justice of the LSK council. Many of the current MPs ditched the parties that sponsored them to Parliament without going back to the electorate to seek a fresh mandate. This is illegal. Why has LSK not taken them to court?

— John Achima, Nairobi.

The Constitution sets out clearly the conditions under which an MP can lose his or her seat.

The Speaker of the National Assembly has ruled previously that an MP write to him in no uncertain terms to resign from the party that sponsored him or her so that the seat may be declared vacant. However, this issue will be addressed when the Political Parties Bill is enacted. LSK has not prosecuted such MPs because supporting a political party that is not the one that sponsored an MP is not a criminal offence. Where are the offices of the Advocates Complaints Commission, and how may one lodge a complaint against a lawyer who fails to act after being paid?

— Paul Gesimba, Nairobi.

The offices are at the attorney-general’s chambers.

A complaint may be lodged by a simple letter and the filling of a simple complaints help form available for free at the offices. Complaints may also be lodged directly with the LSK secretary. There were days when the society was known for striking off members who did not toe the professional line. Such cases are no longer common these days; does this mean lawyers have suddenly become disciplined?

— Hannah Nyawira, Ruiru.

Lawyers have continued to be struck off the roll of advocates. The names are published quarterly in the Kenya Gazette, and LSK continues to hold media briefings like the one I held two weeks ago. How many lawyers are members of your association? And is there the possibility that some are operating without necessarily being registered?

— Samuel Karago, Nairobi.

Of the 5,000 lawyers 3,700 are licensed to practise. We have had isolated cases of people masquerading as lawyers. And to stem this, LSK publishes a list of all paid-up members by January 31, every year. The society circulates to all the courts the list together with that of suspended advocates. What percentage of the country’s legal profession do women hold?

—Wanjiko Karago, Ruiru. Nearly a third.

How do you rate the Narc government’s performance in terms of human rights, including freedom of expression?

— Janai Abaya Orina, Nairobi.

The Narc government has certainly expanded the democratic space, particularly in freedom of expression.

This is evident when we compare the media today to what they were five years ago, although the raid on the Standard premises was a great violation of this freedom. Although the Government now recognises key human rights institutions, it could do better. What is your position on the shoot-to-kill order recently issued by Security minister John Michuki? Do you think it is responsible for the high number of extra-judicial killings?

— Omosa William Ong’era, Nairobi.

The law knows of no such thing as shoot to kill. The Police Act is clear on the circumstance in which an officer may use his firearm to kill. Generally speaking, police are entitled to using reasonable force to effect an arrest. Where an officer’s life is in danger, he or she may be entitled to opening fire and killing a suspect. Any other killing is manslaughter or murder, depending on the circumstances, and such officer should be arraigned in court. Our laws appear to favour the rich and influential; what has LSK done to ensure the poor get fair trials?

— George Gopal, Nairobi.

This is a perception. However, it is true that the poor have serious handicaps in accessing justice. As many cannot afford legal assistance, they are prejudiced in the conduct of their matters before the court and tilt the scales of justice against them. The LSK is promoting legal aid, and has a list of members who provide the service for free. You are always in a jovial mood, what motivates you? What’s the secret of your seeming success?

— Abdi Ibrahim Ali, Mandera.

My mood is inspired the Bible. Psalms 37:4 says I should delight in the lord and he will give me the desires of my heart.

This is a great inspiration to me everyday, so even in difficult situations I learn to take it in my stride and truly see a blessing hidden in the situation. The secret of my success is God and tremendous support from my family, colleagues and friends who have provided invaluable support. Why do you force foreign examination law graduates to undergo further training at Kenya School of Law before admitting them to the bar?

— Jackson W. Muchonji, Malaba.

To maintain and harmonise standards in the profession and to comply with the Council of Legal Education and Advocates Acts. What change have you brought to LSK since taking over as chairman?

— Abdiwahid Khalif, Habaswein.

We have opened a new chapter in its operations as there are serious engagements with various government departments that are key to the legal profession. LSK continues to give direction on key national issues and is opening up advertisements for lawyers.

A comprehensive review of the advocates disciplinary process has been undertaken and will be wrapped up with a study tour of South Africa later in the year. And for the first time in Kenya’s history, LSK has hosted a Commonwealth Lawyers Association conference. What role is LSK going to play to ensure a free and fare General election?

— John Kuria, Githunguri.

The society has been accredited by the Electoral Commission as an observer. We have a clear mandate under the LSK Act to help and protect the public in all matters relating to the law. What legacy would you like to leave when your term as LSK boss expires?

— Bosco M., Nakuru.

I would like to leave a legacy that I referred to in my inaugural speech – that of respect for the rule of law by the government of the day, where arguments are reinforced with results. In conclusion, I would like to echo the words of John Oliver Killens: “Life is a short walk. There is so little time and so much living to achieve”. I have learned also that in leadership one needs courage and initiative to enable one to change the circumstances from bad to good. This calls for determination.