Sunday, October 5, 2008



By Jerry Okungu
Nairobi, Kenya
October 4, 2008

Once upon a time, the Law Society of Kenya was the institution to look up to. It was the guardian angel of the downtrodden in the days of Moi’s oppressive regime. Its officials, the likes of Lee Muthoga and BM Kariuki were models of principle and character. When the Society Chairman spoke, even the most powerful Attorney General, Charles Njonjo paid attention. In those days, the Society was not a den of petty activism that it is today. It was pointedly selective on issues to engage in.

In the late 1980s, it focused more on human rights abuses and democratization. These two issues are what built the careers of James Orengo, Paul Muite, Kamau Kuria, Gitobu Imanyara, Martha Karua and Kiraitu Murungi.

Most of these LSK members took up non-paying litigation cases that involved political activists facing state prosecutions at the time. Those were the days when Mwakenya activists could easily be taken to court after hours by Bernard Chunga. By then collaborating judges were just too willing to cooperate with the state to summarily convict suspects to long jail terms without any legal representation.

Over the years, it would appear like the LSK has undergone some drastic metamorphosis. These days it keeps hopping from one issue after another with no staying power to follow on an issue to its logical conclusion. It would appear like the LSK is now more into publicity seeking venture rather than dwell on pressing governance issues of the day.

Take the case of the elections aftermath; one would have expected the LSK to vigorously pursue the ECK on points of law to ensure the Commissioners were punished. Instead of studying the legal aspects of this drama, the Society was content to condemn the ECK just like every layman did and went to bed.

Part of the reason we don’t have a new constitution is because we have lawyers in this country whose self interest comes first. The amount of hair splitting arguments for or against all manner of technicalities in writing a new constitution only goes to confuse the country more. Another thing; because constitution making is a lucrative business; any time the government moves to conclude the process, the legal fraternity always takes the front row. All of a sudden, every lawyer is an expert on constitution making. All of a sudden, they have the marginalized and disadvantaged groups whose views they must represent!

Recently when Prime Minister Raila Odinga suggested that all public servants should sign performance contracts, judges protested. They didn’t think it was proper that some layman; an unlearned friend should appraise the quality of service they deliver to the public. In the heat of the debate, the LSK joined in the fray to support the Prime Minister’s stand that all public officers must account for their contribution to the economy. When the debate stopped making the headlines, the LSK also abandoned the campaign.

When in 2008, Amos Kimunya presented his budget that included proposals to tax allowances of all MPs, Ministers and constitutional office holders; the LSK initially supported the move. However, right now it has changed its tune. It now wants to challenge the taxation of judges’ allowances in a constitutional court. The reasons they give are as flimsy as they can be.

Some senior LSK members argue that if we taxed the judges like we tax the police and other civil servants; they would be susceptible to corruption! Incidentally this was the same argument offered when Parliament decided to offer the Anti Corruption Chief unprecedented package that even surpassed that of the President of Kenya.
Kenya has never taxed judges in the past, yet in 2003, so many judges were sent home due to graft in the judiciary. Yes we can exempt our judges from taxation but it will not stop them from being on the take if they so wish.

The other day the LSK was upbeat in getting the President to sack the Chief Justice for incompetence. They made noise and even rioted for a few days. Justice Gicheru is still in office. The LSK is yet to see the President.

The irony now is that the same bench headed by Justice Evans Gicheru is likely to be the latest LSK client in a case of the Executive VS the Bench in a tussle over taxation. Can LSK kick out the client who pays it legal fees?

Come on LSK; in this matter of taxation, you have got it all wrong. This time the public will rise up against you.