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Survival guide from a golden age, for a brave new world

Lawyers

Lawyers and civil rights activists carrying banners and placards at The Supreme Court on January 12, 2024, protesting against President William Ruto’s attacks on the Judiciary.

Photo credit: File | Nation Media Group

What you need to know:

  • Lawyers are direct and indirect guarantors of efficacy in every sphere of endeavour.
  • There is reason to be concerned when the Judiciary degenerates into a revolting crucible of clamorous altercation.

Whilst contemplating the halcyon era of professional practice in the learned field of law, inevitable dismay about the swift and steep descent, from a golden age into a brave new world of abysmal dysfunction, is exacerbated by the ambient climate of undeniable angst.

An epoch of unprecedented adversity has exposed the hidden colours of many, and more often than not, the legal, ethical and professional frameworks which regulated and standardised conduct are increasingly perceived as mere inconveniences to be easily vaulted by an outbreak of sharp practice and outright impunity.

This matters, not just because we are constitutionally destined to be governed by lawyers- pivotal arms and agencies of the Republic's legislative, judicial and executive authority are designated for the exclusive control or significant influence of advocates, lawyers are fundamental guarantors of the rule of law and the integrity of judicial processes and outcomes. Consequently, lawyers regardless of whether they ply their trade from private chambers or the public service, and whether they serve from the bar or the bench, are direct and indirect guarantors of efficacy in every sphere of endeavour.

The strategies, arguments and tactics they employ, and their knowledge, wisdom, skill and experience as well as capacity for thorough research and perspicacious analysis strongly bear upon outputs and outcomes, in terms of prompt and rational decisions which promote regulatory soundness, market efficiency, security of property rights as well as broader aspects of human rights, freedom, constitutionalism and democracy.

The actions of lawyers therefore matter, and the handiwork of unscrupulous lawyers: judges on the take as well as perfidious advocates, affect the desirability of our economy for trade and investment in terms of investor confidence, the cost of doing business and risk appetite, since a lot of enterprises entail the staking of fortunes out of strong faith in the neutrality and efficiency of institutions.

Most trusted institution

There is reason to be concerned, therefore, when the Judiciary, which only recently was consistently the country's most trusted institution, degenerates into a revolting crucible of clamorous altercation with sordid imputations of reprehensible turpitude alternating between officers of the court in place of chivalrous compliments and learned courtesies.

This unseemly spectacle is charged with insinuations about judicial officers who derive illicit emoluments that make the revenues of the most lucrative practices seem desperately paltry by comparison on one hand, and advocates who receive and retain funds intended for onward transmission to judicial officials in consideration of egregiously transgressive bespoke decisions on the other hand.

Occasionally, the conflict takes dystopian dimensions, in which understandings of trust and integrity, as well as deceit and treachery are utterly warped, and judicial officials are condemned for deciding against a party despite having been treated by them, or using their decisions to retaliate against unforthcoming parties or their advocates who may have forgotten, neglected or otherwise failed to deliver inducements as agreed, or at all.

Conversely, it has been pointed out on behalf of the judiciary that notwithstanding the legitimacy of concerns pertaining to judicial corruption, care must be taken in order to distinguish genuine allegations of misconduct from disguised appeals against undesirable decisions. Compared with the ferocity and mutual antipathy between parties to this contest the proverbial Kilkenny cats are nothing more formidable than cute little kittens.

Robustness of vital institutions

Worse still, the pervasive animus which overhangs the contest is bound to escalate the mundane stakes involved in such quotidian affairs as the election of the law society, judicial officers’ association, representatives to the Judicial Service Commission and other regulatory bodies. Advocates with an axe to grind, will move earth and heaven to win a seat in the hopes of intimidating judicial officers to see matters their way, while judicial officers will likewise seek to counter and neutralise these ambitions.

The suggestion that at some level, advocates aspire to represent their clients by purchasing decisions for money and money's worth, while judicial officers desire to dispense bespoke outcomes at a fee underscores this dreadful fact: judicial integrity and the professional rectitude of advocates are essential, complementary attributes which define the institutional credibility of the judiciary and robustness of vital institutions.

For the time being, the Law Society of Kenya should seriously consider publishing a handbook to guide the unsuspecting public to detect the hallmarks of a dependable advocate, and red flags to identify their delinquent counterparts. In all probability the handbook would portray the ideal advocate as a replica of the unassuming, devoutly compliant, professionally vigilant, polite and considerate professional depicted by the teachers of professional ethics.

It stands to reason then, that the crude, rude, lackadaisical, sly and predatory version would struggle against the necessary constraints of the law and ethics, and display a voracious appetite for conflict, subversion and vindictiveness, as well as a propensity for reckless pursuit of personal vendetta at the expense of the client's or broader public interest.

This introspection underscores the utility of the mark by which murderous Cain was branded: avoiding the malignant agent ironically serves the additional purpose of protecting them from serious professional jeopardy.

The writer is the Secretary, Policy Messaging and Speechwriting, The Presidency