New LSK Act will be hard to navigate

NAIROBI: On December 24, last year, President Uhuru Kenyatta signed into law the new Law Society of Kenya (LSK) Act, 2014. The law came into force last week.

The new statute completely repealed Pre-independence legislation relating to the lawyers' body.

The Act establishes a revamped Law Society of Kenya (the society), and provides for its leadership, membership and eight branches countrywide and gives 14 varying objects and functions.

It aims to facilitate the realisation of an independent and efficient legal profession, which promotes the rule of law and the administration of justice.

All advocates become members by virtue of law and not choice and it is estimated that about 11,000 lawyers are currently members of the society.

Two other pieces of legislation, the Advocates Act and the Council of Legal Education Act come into play when discussing the role of lawyers in the country.

The new legislation is poorly drafted and full of perplexing paradoxes.

It is regrettable that the Attorney General (whose mandate it is to bring all the bills for enactment), the present leadership of the Society, and the National Assembly are jointly guilty of allowing two major blunders and allowing the President to assent to the law which is half-baked and full of mistakes in content and form.

The first blunder is self-evident. The preamble to the Act reads: "An Act of Parliament to establish the LSK, to provide for the objects, and conduct of the affairs of the society, to provide for the establishment of the Advocates Client Compensation Fund and for connected purposes."

Believe it or not, in the body of the Act somebody somewhere has completely forgotten, or deliberately omitted to provide for the Advocates Client Compensation Fund and by doing so, an opportunity to bring some sanity into the legal profession has been lost.

The second blunder relates to disciplinary matters relating to lawyers and the usage of the words 'Disciplinary Committee,' which is defined as a Committee under the Advocates Act.

The Act provides for "The Compliance and Ethics Directorate". This Directorate is tasked with the responsibility to receive and evaluate complaints against advocates and prosecution of matters before the "Disciplinary Committee".

Herein lies the problem because under the Advocates Act there is establishment of a Complaints Commission which is headed by commissioners appointed by the President.

The commissions' mandate is to enquire into complaints against any advocate, firm of advocates, or any member or employees. Reference in the definition section and the body of the Act to 'disciplinary committee' is a mistake, for in law there exists no 'disciplinary committee' under the Advocates Act.

In 2012 through The Statute Law (Miscellaneous Amendment) Act number 12 of 2012, the Advocates Act was amended and the Disciplinary Committee abolished and replaced by a Disciplinary Tribunal.

Thousands of complaints against advocates are made and there are hundreds of cases pending and unheard with clients losing millions of shillings entrusted to advocates without any real recourse.

The ultimate result of the new legislation is that a complainant will not know if he has to seek redress from the Complaints Commission or the Tribunal or the non-existent 'Disciplinary Committee'.

The unspoken reality, unaddressed and dark fact of legal life is the promotion of corruption by the legal fraternity.

The wheels of justice, the varied legal process at the lands office - from valuation, stamping and preparation of rates - are faced by deep-rooted corruption, which lawyers not only promote but also condone.

Other national bodies such as the companies' offices, registration bodies and tribunals are similarly engrossed in well-established and myriad cartels of nefarious processes.

Not only are clients of advocates exploited but the exchequer loses billions of shillings. Those interested in change should have addressed this matter. It is yet another opportunity wasted.

There are other poor examples of draftsmanship. The renaming of the society's chairman to 'President' appears to be illegal as under the Interpretation and General Provisions Act, "the President" means the person elected as President of the Republic under the Constitution.

Was there need for the Interpretation and General Provisions Act to be amended?

Under the arrangement of Sections, Section 43 is missing while Section 44 is shown as providing for transitional provisions. In the body of the Act, Section 44 is completely missing while section 43 provides for "Savings and Transitional provisions".

In the climate of newly discovered constitutionalism in the country, there is a school of thought that the Law Society Act is itself illegal as one cannot be forced by law to join a society which an individual does not desire to and this is likely to surface in the ongoing dispute relating to the proposed arbitration centre.

There is no doubt that the more than 50-year-old legislation relating to lawyers needed to be reviewed in view of the phenomenal changes within the legal profession.

However, the habit of routinely passing substandard legislation needs to be addressed at the highest level.

Advocates all over the country must seek to amend the new law, and get a way out of the legal quagmire.