Law requiring advocates to report clients' illegal dealings challenged

Petitioner says impugned provisions clash with advocate-client privilege

In Summary
  • Lawyer Mwaura Kabata says the law in question makes them unwilling state agents
  • Kabata says regulations of lawyers by LSK and rules made thereunder already provide for effective constitutional anti-money laundering and anti-terrorism financing regimes.
Milimani law courts.
MILIMANI: Milimani law courts.
Image: FILE

A city advocate has filed a petition challenging the proposed law that compels them to report their clients’ illegal transactions to the state.

The Proceeds of Crime and Anti-Money Laundering Amendment Bill, which was assented by the President on January 3, requires lawyers to keep cash records of transactions beyond Sh1 million.

Lawyer Mwaura Kabata says the law makes them unwilling state agents and turns law offices into archives for use by the police and prosecution.

“By operation of the provisions introduced into the Act, lawyers are impeded in their duties and their service delivery to their clients, as the provisions manifestly erode advocate-client privilege,” he said.

Kabata further says that impugned provisions clash with the various codes of conduct obligating advocates to abide by the advocates-client privilege.

Through lawyer Omwanza Ombati, Kabata argues that advocates face the risk of being found to have breached the provisions of the impugned Act should they resist to divulge client’s details.

“In the event that they abide by the impugned provisions of the POCAMLA Amendment, 2021, and in so doing, break their clients’ privilege,” reads court papers.

He further says that for both scenarios, there are harsh consequences to lawyers both to their private persons and their business concerns.

They have also faulted the law saying it puts the financial report in the place of an agency to oversee compliance and allows it to search and seize protected privileged material from advocates, their law firms, homes and places of work.

“These provisions authorise sweeping searches of law offices which inherently risks breaching advocate-client privilege,” Kabata says.

He further avers that the expectation of privacy in advocate-client privileged communications is invariably high regardless of the context and nothing about the regulatory context of the Amendment to the Act or the fact that a “regulatory agency” undertakes the searches diminishes that expectation.

According to court papers, lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority.

“Advocate-client privilege has already been recognised as a constitutional norm and breach of this principle of fundamental justice is sufficient to establish the potential deprivation of liberty that violates Article 24 and 31 of the Constitution,” he said.

Kabata says the regulations of lawyers by LSK and rules made thereunder already provide for effective constitutional anti-money laundering and anti-terrorism financing regimes.

He also argues that the challenged provisions are vague in as far as they include employees at law firms as persons required to comply with reporting obligations.

“The Amendment does not distinguish between non-legal employees, support staff, interns, pupils, messengers, clerks, process servers, secretaries,” reads court papers.

Kabata says if the provisions were allowed to stand, employees at law firms stand to be in violation of their employment contracts should they disclose matters that came into knowledge during the course of their employment not withstanding their non-disclosure clauses in their contracts

“legal advisors have been placed in an unacceptable conflict of interest between clients’ interests, the state interests, and their own liberty interests, as the provisions have turned lawyers into agents of the state.” he argues.




-Edited by SKanyara