NDUNGU: Of advocates and freedom of speech

Advocates must speak out. Always. Against injustices and to uphold the rule of law. After all, this is their Article 33 right. Free speech is essential in democracies and is a key driver of access to justice and protecting the rights of all, especially the vulnerable and the marginalised.

However, is this right unrestricted? The freedom of expression right is enshrined in Article 33 of the Kenyan Constitution. It includes the freedom to seek, receive or impart information and ideas, the freedom of artistic creativity and scientific research. It carries duties, responsibilities and restrictions.

It is often an overlooked fact that, according to Article 33 (2) of the Constitution, the right comes with the attendant constitutional duty to respect the rights and reputation of others. The right does not extend to propaganda for war, incitement to violence and hate speech. One can also not claim freedom of expression to advocate hatred that constitutes ethnic incitement, vilification of others or incites to cause harm.

In the context of the legal profession, when advocates are expressing their free speech right, they must be mindful of the Constitution, the Advocates Act, the Law Society of Kenya Act, and the LSK Code of Standards of Professional Practice and Ethical Conduct because they provide the mechanisms to regulate advocates.

In their ‘free speech’, advocates should be conscious of their duties. Professionally, advocates owe duties to the court, their clients, the public, the profession and other advocates. It cannot be gainsaid that an advocate’s duty to the court is paramount.

Advocates, as officers of the court, have the obligation to promote justice and the effective operation of the judicial system. They must conduct themselves with professional integrity because public confidence in the administration of justice and the legal profession may be eroded by a lawyer's irresponsible conduct.

The Kenyan courts have been persistent that an advocate has the duty to the court that supersedes the one owed to the client. Advocates as officers of the court by oath and by law, have an overriding duty to the court to act with independence in the interests of justice. They must not deceive or knowingly or recklessly mislead the court.

In addition, they must never assert as true that which is not true or hold themselves as ‘hired guns’ nor employ shrewdness at the expense of truth. This ensures that advocates stay true to their duty of disclosure and not mislead as to facts or conceal from courts facts that ought to be brought to the attention of the court.

The legal profession has been in existence for over 2,000 years. Advocates play a critical role in the formulation, administration and reform of law. Therefore, they have to be subjected to distinct standards, regulations and liability in light of the various duties that they owe.

The term ‘learned friend’, a gripe to many, should never be construed to mean that the legal profession is the most superior of all. It is opined that the term, borne out of tradition, merely denotes courtesy to peers in the profession. It is particularly useful when your opponent is making ludicrous arguments in the courtroom but you exercise restraint and address them as ‘learned’. Court decorum must never fall by the wayside.

The term is also a reminder that advocates must continuously strive to be informed on the law and its interplay on prevailing social, economic and political issues. Indeed, it is more a humbling term than lofty.

In the context of free speech therefore, it becomes apparent that advocates must never lose sight of the fact that they have special responsibilities by virtue of the privileges afforded the legal profession and the important role it plays in a free and democratic society and in the administration of justice.

Significantly, advocates’ conduct must unwaveringly be in line with the LSK Code of Standards of Professional Practice and Ethical Conduct. This code outlines professional misconduct as conduct in breach of the rules, standards and ethics of the profession.

The code is uncompromising that advocates must at all times maintain the highest standards of honesty and integrity towards clients, the court, colleagues, all with whom the advocate has professional dealings and the general public. The LSK should take the lead in enforcing these standards and not leave it to the courts to act in self-help to avoid the deterioration of professional standards.

Thus, whilst exercising free speech and being in consonance with the code and attendant duties, by no stretch of the imagination can this constitute depriving advocates of the freedom of expression. If anything, it upholds the constitutional duty of respecting the rights and reputation of others.

Advocate and Strategy Adviser to the Chief Justice