• Ojienda said the proposed amendments would impinge on on the principle of advocate-client privilege.
• Letter was addressed to National Assembly.
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Senior Counsel Tom Ojienda has written to the National Assembly protesting proposed amendments to the Anti-Money Laundering Act.
In his letter on Friday, Ojienda said the proposed amendments affect the practice of law and the traditional role of lawyers and gravely impinge on the principle of advocate-client privilege.
In addition, Ojienda said the proposed amendments are contrary to the rules of evidence as they relate to the principle of advocate-client privilege
Ojienda said the amendments would pose a real threat to the very existence of the legal profession and should be shelved and withdrawn from consideration by the House.
"The proposed amendments to sections 2 and 48 targets advocates mainly because they hold client accounts into which clients deposit monies in respect of the legal services rendered to them by advocates," he wrote.
"However, the proposed amendments seem so hasty and oblivious of the existing legal framework that governs the practice of law and the legal profession in Kenya."
The lawyer said the principle of the advocate-client privilege or legal professional privilege requires of lawyers to keep confidential communication between them and their clients.
Therefore the basis of this principle is underpinned by public interest considerations.
"The proposed amendments seek to designate “advocates, notaries and other independent legal professionals” as reporting entities obligated to report suspicious financial transactions to FRC." added Ojienda.
He further said that no one shall be compelled to disclose to the court any confidential communication which has taken place between him and his advocate unless he offers himself as a witness.
Ojienda said that the proposed amendments to Anti-money laundering Act have the aim of turning “advocates, notaries and other independent legal professionals” into investigators of their clients, which offends the client’s constitutional rights protected in the Bill of Rights.
Ojienda said that the legal profession in Kenya is a self-regulating profession with its own internal regulatory mechanisms and authorities and disciplinary procedures.
He said, "Section 18 of the Proceeds of Crime and Anti-money Laundering Act (POCAMLA) already recognises the principle of the advocate-client privilege. However, the proposed amendments to the Act seem to nullify this recognition and create a conflict of duty for the advocates as concerns the legal relationship between advocates and their clients," added Ojienda.