• Lawyer legislators sought a declaration that the bill was in breach of the principle of advocate-client confidentiality.
• They also wanted the speaker to rule that the bill was not properly introduced in the House, amendments and was sneaked.
Image: FREDRICK OMONDI
Lawyer MPs have lost their attempt to block debate on the Proceeds of Crime and Anti-Money Laundering (Amendment) Bill, 2021.
The bill was passed on Wednesday and is awaiting assent by President Uhuru Kenyatta.
This followed a ruling by National Assembly Deputy Speaker Moses Cheboi that the government-sponsored bill was properly before the House.
“In introducing the bill in the House, the Leader of the Majority was satisfied by the procedure prescribed in the Standing Orders and previous guidance issued by the Speaker,” he ruled on Tuesday.
Lawyer MPs, led by Tharaka MP Gitonga Murugara, sought that the bill be expunged on claims it contains provisions that are unconstitutional.
He also questioned the obligation of lawyers – and accountants - to report suspicious transactions saying such a move violated Article 27 of the Constitution which prohibits any form of discrimination.
The lawyer further argued that requiring advocates to report suspect deals would erode the settled legal principle of advocate-client confidentiality.
But in his ruling, deputy speaker Cheboi held that the proposals in the bill do not render the legislative piece unconstitutional.
“The bill explicitly discloses the intended limitations and the purpose and extent of the limitations as required by Article 24 of the Constitution,” he said on Tuesday.
He also held that the inclusion of advocates as reporting institutions for suspicious financial transactions does not, at face value, erode legal principle of advocate-client confidentiality.
“Section 18 of the Proceeds of Crime and Anti-Money Laundering Act, 2009 currently provides for the entrenchment of the principle.”
“Any member seeking to buttress the principle further in light of the amendments proposed by the bill is at liberty to propose appropriate amendments for consideration by the House,” Cheboi ruled.
The move may come as a blow to the Law Society of Kenya which also argued on the same principle “much as they support efforts towards fighting money laundering and terrorism financing.”
“The society opposes legislative proposals that substantially affect the practice of law, rule of law and administration of justice,” the LSK said in its memorandum to the Finance committee which has since approved the bill.
The bill provides that the state – Financial Reporting Centre, would have the powers to freeze property and suspicious transactions for five business days without a court order.
Lawyers argued that the provision would be limiting certain rights provided for in the supreme law.
But Cheboi held that Parliament has powers to limit certain rights by law, being the law making authority.
“Article 24(1) of the Constitution permits limitation of certain rights by law, which can only be done by Parliament as the sole law-making authority,” he said.
He also rejected assertions by some members, among them Garissa Township MP Aden Duale, that the amendment was being sneaked.
“It is not the first time amendments are being introduced. The first attempt was in 2015 when Duale introduced a bill to enhance FRC powers to impose civil penalties against non-compliance,” he said.
A second amendment listed accountants as among professionals with obligation to report to the centre.
This was before amendments were pursued in a statutes law in 2016, and in 2019 when the Finance committee recommended that the clauses related to lawyers’ obligations to report were deleted.
“There was at no point a mention of unconstitutionality of the said provisions as a ground for recommending their deletion.”
“Instead, the committee cited the need for such amendments to be contained in a separate bill in order to allow wider public participation,” Cheboi said in his ruling.
“The long-winding journey defeats claims that the amendments were being sneaked. The issue has had structural and procedural errors and the vehicle through which they were to be introduced in the House,” he said.
Cheboi concluded that, “The bill is properly before the House as the procedural issues have been fully addressed. Nothing precludes the House from considering the bill in the remaining stages.”
He further argued that the bill has expressly stated the nature of limitation of rights in a specific clause.
“It is not first time the House is being confronted with limitation of rights. The question is whether the intrusion is proportionate to public interest. The House is expected to weigh the claim and the public interest.”
On advocate-client relationship, he held that nothing in the proposed law stands to affect the principle of confidentiality.
“A judge may order advocate to disclose matters in a transaction. Therefore, the concern by lawyers muted as bill provides for protection of confidentiality.
“Members are free to propose amendments to the bill. What would matter is, do the House agree with the proposed amendments? Members are within the right to oppose or support the bill,” Cheboi concluded.
MPs Gladys Wanga (Homa Bay WR), Opondo Kaluma (Homa Bay Town), and Patrick Musimba have proposed amendments to the bill to strengthen the proposed clauses.
(Edited by Bilha Makokha)