Why LSK contests conferment of Senior Counsel rank to 24 advocates

The Law Society of Kenya has faulted President Uhuru Kenyatta for conferring Senior Counsel rank on 24 advocates despite the fact that a dispute on the list is pending in court.

The LSK termed the President’s move as an exercise in impunity saying the matter was yet to be mediated.

“President Uhuru Kenyatta acted with impunity in conferring rank of Senior Counsel on the 24 Advocates. The dispute on their recommendation for conferment is still pending in Court. We will abide by the outcome of the mediation that ensured therefrom whose report is expected soon,” the LSK said on Monday.

Conferment

In a statement sent to newsrooms by the State House Spokesperson Kanze-Dena Mararo, the Head of State attributed his move to privileges accorded to him by the Advocates Act to pick advocates of the High Court for the accolade.

“The president Prerogative to confer the rank and dignity of Senior Counsel is set out under the Advocates Act. The rank of the Senior Counsel is conferred in accordance with the recommendations of the Committee on senior Counsel, to Advocates of the High Court of Kenya who have distinguished themselves by rendering exemplary service in the legal and public services arenas,” said Kanze Dena, State House Spokesperson.

Wiper Leader Kalonzo Musyoka, Narc Kenya Leader Martha Karua, Rarieda MP Otiende Amollo and former Director of Public Prosecutions Phillip Murgor were among the 24 nominees. Zehrabanu Janmohamed who is also a non-executive director of Standard Group PLC was also in the list of those accorded Senior Counsel status.

The other nominees were OM Parkash Nagpal, Fackson Wainaina Kagwe, Pravin Kumar Bowry, Charles Waweru Gatonye, Rautta Athiambo, Fredrick Ngatia, Mohammed Nyaoga, Albert Mumma, Beautah Alukhava Siganga, Kiragu Kimani, Judy Thongori, Taib Ali Taib Bajabir, Wilfred Nderitu, John M Ohaga, Kioko Kilukumi, Patricia Mande Nyaundi (former KNHCR boss), Dorcas Agik Odhong Oduor (Deputy DPP), Abdikadir Hussein Mohamed, and John Mugwimi Chigit (former legal services at KACC).

Issues of contention

The 24 nominees were picked by the Committee on Senior Counsel chaired by Supreme Court Judge Justice Mohamed Ibrahim in 2019, after which the committee handed over its report on August 26, 2019. However, almost a year later, the LSK went to court on May 14, 2020, where it nullified the nomination for conferment after some lawyers faulted the selection process.

For instance, lawyer Donald Kipkorir alleged that the committee was biased because it favoured more criminal lawyers than commercial litigators and overlooked the need for regional balance and gender. Kipkorir further accused the committee of by-stepping the requirement that the status be conferred on Attorney-Generals, Directors of Public Prosecutions and LSK Presidents.

The LSK boss Nelson Havi sent a letter to lawyers as he raised more issues on the credibility of some of the members of the committee that sat for the selection.  Havi cited a lack of impartiality on three members of the committee. They were Justice Ibrahim, Justice Martha Koome, who represented the Court of Appeal, and Justice Jacqueline Kamau who represented the High Court.

“Concerns were and continue to be raised on the validity of the Advocates (Senior Counsel Conferment and Privileges) Rules, 2011. The rules are indicated to have been amended twice in 2012 and 2014 without public participation. All these issues impact negatively on the process of recommendation for conferment made in 2019 and intended to be made in 2020, a call for applications in respect of which was made to members on February 24, 2020,” Have stated in the letter.

He further indicated that the LSK resolved to cancel the nominations for the conferment on May 11 and that fresh applications would be considered.

 “It was resolved that the decision of the committee made on August 26, 2019, be set aside. The recommendation for conferment of the 24 advocates was, therefore, revoked. The applications for 2019 shall be considered together with those made in 2020,” he added.

The LSK then proposed that three advocates comprising two senior counsels be engaged to give their legal opinions on the new rules to guarantee fairness in the fresh nomination.

He said: “We undertake to ensure that henceforth, the conferment process meets the requirements of Section 7 of the Advocates Act, The Constitution of Kenya and best practice in the Commonwealth. The process should be fair and transparent. Recommendations must be made upon identifying excellency in applicants through meritocracy in a rigorous and objective exercise.”

The highly coveted Senior Counsel status, only equitable to Queen’s Counsel in Great Britain, has only been given to slightly over only 23 out of over 16,000 lawyers since its inception in 2003 so far.

Those who have been conferred with the rank can use the Senior Counsel (SC) title plus other privileges as determined by the LSK.