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September 25, 2018

Fighting For The Soul Of The Law Society Of Kenya

Fighting For The Soul Of The Law Society Of Kenya
Fighting For The Soul Of The Law Society Of Kenya

One of the most dangerous directorships a Kenyan can aspire to is that of a land-buying company somewhere in what used to be called Central province.

The Annual General Meetings of these organisations, whose membership can number in the thousands, are often fraught and sometimes deadly affairs.

Accusations of corruption on the part of directors by the membership and in-fighting among the leadership and management themselves mean that often an armed police presence is essential before a general meeting can proceed.

These directors keep on popping up murdered in what most believe are deals gone bad around the misappropriation of company assets.

The law Society of Kenya, the professional association of Kenya’s legal fraternity, is historically the richest, most politically dynamic, influential, articulate and progressive section of Kenyan ‘civic society’.

Kenya would not be a multiparty democracy today had it not been for the activism of the LSK in the 1990s.

Its most prominent members, Dr. Willy Mutunga, our current Chief Justice, the late Prof. Oki Ooko Ombaka, Kiraitu Murungi, Gibson Kamau Kuria, Martha Karua, Martha Koome, Gitobu Imanyara, Paul Muite, James Orengo among others were at the forefront of agitation for political liberalisation in the early 1990s.

This was especially the case after the young turk reformers took control of the LSK when Paul Muite was elected chairman in 1988 much to the government’s chagrin.

With considerable courage, energy and strategic foresight under the authoritarian Moi regime, they literally crafted the national agenda to which the government responded.

I remember travelling to Tanzania in the mid-1990s and interviewing members of the legal fraternity there who viewed their Kenyan counterparts with considerable admiration.

Last Saturday the LSK’s Annual General Meeting ended in acrimony with the Chair of the Society Eric Mutua and his Council being forced to literally truncate the meeting and dodge the membership out a side door.

Similar events played out last March over the same issues. the melee was televised for the country to watch and reported for all to read.

For those who remember the LSK of the late 1980s and into the 1990s, which also had heated meetings, this display was disheartening.

To some members I spoke to the washing of the LSK’s dirty linen in public in this way was terrible.

Senior lawyers in particular were agitated by the ‘manifest lack of decorum’ and the apparent inability of an association of lawyers to disagree with civility, as they do in court, reminding us of one of those land-buying companies.

Ironically, though, the LSK’s current travails would appear to have all to do with land and the current prevalent malaise in Kenya: accusations of corruption!

Media reports focus on the construction of the LSK’s flagship International Arbitration and Convention Centre, which the Council of the LSK plans to put up.

Members have questioned the project’s cost (apparently initially Sh850 million, then Sh1.2 billion and now said to be Sh1.6 billion).

A battle for the soul of the LSK has been taking place in earnest over the past year over this project that has generated considerable heat and controversy.

A bloc of determined, mainly younger, members – some dubbed Okoa-LSK (Save the LSK) – have raised serious questions concerning the planned Centre’s viability, cost and the propriety of proposed payments.

Thus far five court cases have been spawned by this controversy, including petitions by members seeking to strike down the controversial resolutions imposing upon members the obligation to contribute to the IACC project; seeking to strike out as unconstitutional certain sections of the LSK Act that are perceived to discriminate against younger lawyers locking them out of the management of the LSK; seeking to stop the recruitment of the new CEO using criteria not stipulated by the Act; and to stop the attempted expulsion from the Society of three members who had been most vocal in their questioning of the IACC.

Curiously there is also a suit by the LSK seeking to stop its members from calling any general meeting in their exercise of statutory rights as members.

In the 1990s the government tried to discombobulate the LSK by sponsoring lawyers to monkey-wrench the political reform trajectory the Society was on.

Some allege the same is happening now mixed in with greed. When Paul Muite took over as LSK chair he made an inaugural speech in which he urged the government to register the late Jaramogi Oginga Odinga’s New Development Party.

A case was brought by four lawyers to stop LSK from “engaging in politics”.

Almost the entire LSK council was found guilty of contempt of court and fined Sh10,000 each.

Council members sued alongside Muite included Vice-Chairman Willy Mutunga (now Chief Justice) and members Martha Karua (head of Narc Kenya), Charles Nyachae (now head of the Commission for the Implementation of the Constitution), George Benedict and Maina Kariuki (later appointed a judge).

Back then the reformers won and Kenya is the better for it. It would appear we are embroiled in a similar struggle today though the cynicism seems deeper.

As one top businessman described it to me, and I paraphrase, “It’s about whether Kenya’s lawyers have become merely ‘the guys who get things done and don’t ask how’ – and the very integrity of the profession”.

John Githongo is active in the anti-corruption field regionally and internationally.

[email protected] githongo.com.

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