I was Secretary of the Law Society of Kenya (LSK) when the Kanu government fell to Narc in 2002. As part of its approach to judicial reforms, the new administration made it a priority to get rid of then-Chief Justice Bernard Chunga, whose history with Kanu made him a target for retribution. However, because his office enjoyed security of tenure, Chunga could only be removed on the recommendations of a tribunal formed by the President composed of, among others, an advocate who was admitted to the roll of Senior Counsel established by LSK.
As the society did not have a roll, the only strategy for forcing Chunga out was through political pressure. He stayed put.
When, finally, the government realised that political pressure was not enough to compel the CJ to quit, it approached LSK, requesting that we establish a roll of Senior Counsel to enable the President to constitute a tribunal.
When the LSK Council eventually published the register, Chunga realised the game was up and resigned.
In the period leading to the first multiparty elections 10 years earlier, and even after, the society had had a different relationship with the government.
With opposition parties legally proscribed, LSK emerged as a space for alternative political organising.
To counter the use of LSK as an opposition platform, the government responded in many ways, including identifying and grooming a cadre of loyalist lawyers who, motivated by well-paying contracts with state corporations, constituted a wing that undermined the usually anti-establishment leadership of the society from within.
The government also enacted legislation aimed at curbing the institutional independence of the legal profession, including the introduction of trade licensing on law firms and the restriction of the right of foreign lawyers to practise in Kenya.
There would be skirmishes with individual lawyers as courts were mobilised to use their contempt powers to silence the profession.
Further, the political establishment publicly condemned lawyers and the legal profession in rallies, portraying LSK as pursuing a scheme to impose on Kenya an ill-defined foreign agenda. The most brazen attack on the profession was when it was suggested that LSK be an affiliate of the ruling party, Kanu.
With the results of the society’s elections reliably producing an anti-establishment leadership, it became apparent that a clear way to get onto the LSK Council was by adopting anti-government credentials.
Against this background, while the elections of the LSK were usually a dull internal affair, the 1989 poll proved controversial and caught the public attention. There were allegations that the outcome was the result of rigging that had the support of the political establishment.
While otherwise often at loggerheads on political issues, disciplinary control over the Judiciary and over the Attorney-General, which required the participation of LSK, remained a small area of interface and cooperation between the society and the government.
However, because the government rarely needed to remove a judge or the AG, and since these were the very officials the government relied on to counter LSK, this area of cooperation was rarely invoked as happened with the case of Chunga.
Kenya’s current Constitution has more deeply embedded the organised legal profession into the country’s governance arrangements, effectively making LSK an extension of the state.
The Constitution establishes two seats in the Judicial Service Commission (JSC) for the society, referred to as “the statutory body responsible for the professional regulation of advocates”.
LSK’s participation in the JSC gives it an elevated relationship with the Judiciary and its web of external relationships.
Secondly, because JSC membership has a direct bearing on judicial and national politics, LSK’s elections are now watched by political actors to understand the Judiciary, as a pathway to managing national politics.
An emerging trend is that membership of the council is a platform for contesting for membership of the JSC.
Thirdly, some lawyers involved in the LSK leadership have gone on to launch political careers.
Fourthly, because the Constitution promotes bureaucratic decision-making as an approach to promoting accountability, LSK is a favourite choice for sourcing players that perform the manifold bureaucratic roles expected of the Constitution.
As a result, leading the society is a significant source of patronage. The LSK Council is often invited to serve on panels to appoint key public officials. Anticipating the society as a patron, its Act now provides how, internally, the council is to handle the power to appoint.
Not surprisingly, money plays an increasing role in campaigns for LSK elections. While some lawyers are rich enough to afford expensive campaigns, there are rumours that external interests routinely bankroll some candidates. The politics of the legal profession involve a perception that cliques of advocates seek to secure better outcomes for their clients by intimidating judges.
With claims of judicial corruption rampant, there are perceptions that the JSC is a favourable patch on which corrupt interests consolidate to protect their interests.
While 30 years ago, the LSK made news because of skirmishes with the government, the society is now an extension of the state ecosystem, a fact that reduces the margin of disagreement with the government. Still, LSK remains a high-profile organisation and a favourite of the media, with many of its members skilful users of social media.
