KENYA SCHOOL OF LAW

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THE ADVOCATES TRAINING PROGRAMME

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CRIMINAL LITIGATION

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ATP 101

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CLASS E FIRM 16

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NOVEMBER 2020

 

 

PRESENTED TO DR. NTABO OMOSA

 

DECLARATION

 

We declare that this project is our original work done by Firm 16 Class E members and that it has not been published and/ or submitted to any other university or college before.

MEMBERS OF FIRM 16 CLASS E

REGISTRATION NUMBER

SIGNATURE

1.

OTOKOMA MERCY OTSYULA

20200401

 

2.

MABWANA PASKARI JOSEPH

20201236

 

3.

PUSHATI MARTIN SOINE

20201569

 

4.

MUSYOKA BRENDA MWIKALI

20200516

 

5.

KIMANI PATRICK NDUNG’U

20201796

 

6.

ODHIAMBO WENDY ADHIAMBO

20200682

 

7.

KARIMI MARTIN

20201025

 

8.

CHEROTICH SHEILA

20201319

 

9.

OKEMWA BRIAN OMARI

20201391

 

 

 

 

 

LIST OF CASES

Kamau John Kinyanjui v. R [2010] CA 295 of 2005

LIST OF STATUTES

Advocates Act Cap 16

Code of Conduct and Ethics for Advocates 2016

Constitution of Kenya 2010

Fair Administrative Action Act

Judicial Service Act

Law Society of Kenya Act

The National Police Service Act

Public Officer Ethics Act

African Charter on Human and Peoples’ Rights

International Covenant on Civil and Political Rights

UN Congress on Prevention of Crime and Treatment of Offenders

UN Declaration on Human Rights Defenders

TABLE OF CONTENTS

DECLARATION.. iii

LIST OF CASES. iv

LIST OF STATUTES. v

TABLE OF CONTENTS. vi

INTRODUCTION.. 1

1. Background of the Study. 1
2. Statement of the Problem.. 2
3. Literature Review.. 4
4. Advocates Protection Case. 7

4.1 Structural Framework on the Protection of Advocates. 12

5. Legal Framework on Security for Advocates. 14

5.1 The Constitution of Kenya, 2010. 15

5.2 Law Society of Kenya Act no. 12 of 2012. 15

5.3 The National Police Service act, 2014. 16

5.4 Fair Administrative Action Act, 2015. 16

5.5 The Advocates Act 16

5.6 The Public Officer Ethics Act, 2003. 17

5.7 Judicial Service Act, 2011. 17

5.8 International Bar Association (IBA) 17

5.9 Universal Declaration of Human Rights. 18

5.10 United Nations Congress on Prevention of Crime and Treatment of offenders. 18

5.11 International Covenant on Civil and Political Rights (ICCPR). 19

5.12 African Charter on Human and Peoples’ Rights. 20

6. Recommendation. 20

CONCLUSION.. 21

REFERENCES. 22

 

 

INTRODUCTION

An advocate is any person whose name is dully entered into the Roll of Advocates,[1]an officer in the office of the Attorney-General or the office of the Director of Public Prosecution,[2] the Principal Registrar of Titles and any Registrar of Titles,[3] any person holding office in a local authority established under the Local Government Act, Cap 265,[4] such other person, being a public officer in a public corporation, as the Attorney-General may, by the notice in the Gazette specify.

On admission to the Roll of Advocates, lawyers take an oath in the name of the almighty God to at all times uphold the rule of law and administration of Justice and to discharge their duties as advocates of the High Court. This call is not free of challenges since members of the legal profession are killed, maimed or threatened with death. Advocates are brutalized by police, litigants and fellow advocates in the course of fulfilling their mandate. Their security and protection are not guaranteed by any law unlike the accused and the witnesses. This study seeks to analyze the security concerns of advocates in relation to their duty and advance a case for their Security Protection.

Background of the StudyAdvocates just like human rights protectors are engaged in a duty that puts their lives in danger. From the global perspective they have been involved in varied issues that rub the high and the mighty in the wrong way. From corruption to sexual violence, homophobia to crimes against humanity, abuse of power and have tackled some of the pressing and societal disturbing issues in the world. They have utilized speech, writings, protests and law suits, brought to public spotlight, demanded change and adherence to the rule of law. Some have succeeded in their quest and feted for their accomplishment, while others have been harassed, stigmatized or imprisoned in their push.[5]

In February 2015, the then President of the International Bar Association (IBA) David W. Rivkin formed a Task Force to study and report the challenges facing the independence of the legal profession in the world. The Task Force identified various indicators that are of threat to the profession in the world which include:

• Lack of constitutional guarantees to the independence of judiciary
• Lack of protection on the professional confidentiality
• Lack of effective independent regulation of the profession
• Lack of freedom of representation including freedom from fear of prosecution in controversial cases
• Failure to uphold the rule of law by governments
• Interference with the comprehensive legal education and professional training, among others.[6]

1. Statement of the Problem

The legal profession is designed to operate at the centre of upholding the rule of law and administration of justice. Often, the profession is held as career of both esteem and prestige on one hand, while on the other hand it is loathed and dismissed in equal strength. Successive governments have been accused of interfering with advocates’ freedom and of infringing their rights of duty. Successive governments have made assurances to the association of advocates that their rights and freedoms have shall be protected. However, that has remained more theoretical than real as advocates continue to be harassed in the course of their duty. Right to freedom and security of the person is a constitutional guarantee and no person should be deprived of freedom arbitrarily or without just cause nor should anyone be subjected to any form of violence from either public or private sources.[7]

Despite these provisions, advocates continue to experience hostile environment in the course of their duty. Cases of advocates being harassed, threatened and even being murdered continue to take place in the country. Among the victims of duty related attacks include Mr. Oscar Kamau Kingara, a lawyer and human rights activist who was assassinated in March 2009. His assassination was associated to his work on documenting police killings. In 2016, Mr. Willie Kimani, an advocate of the High Court went missing together with his client and taxi driver after a court session and were later found dead and dumped in a river at Thika.[8] In 2017, Mr. Lilan Simon was assaulted by six security guards in his own office while an un-uniformed police officer watched.[9] Mr. Charles Kanjama, a renowned lawyer in Kenya, experienced an attempted assassination in 2019 alongside former Garissa Finance Executive Mr. Idris Mukhtar, who was his client at the time.[10] In September 2020, lawyers in Meru held peaceful demonstrations in Maua town in protest of the shooting of their colleague Kirimi Mbogo. The lawyers complained that Mr. Mbogo had on several occasions been attacked but no arrests have ever been made.[11]

The above scenarios represent many other cases of advocate harassment in the course of their duty. Unlike the accused and the witnesses who are protected by law, advocates involved in sensitive matters are left exposed to harassment or prosecution. Little has been done to address this problem to ensure that advocates are sufficiently protected as they carry out their duty of protecting the rule of law and in the administration of justice yet it the responsibility of the State to ensure access to justice for all persons.[12]

The Kenyan Constitution provides for national values that give rise to a multi-party democratic right, hence no one should be harassed due to political affiliation.[13] The national values and principles of governance include social justice as among the values to be pursued and protected.[14] Right to freedom and security of the person is a constitutional guarantee. No person shall be deprived of freedom arbitrarily or without just cause nor should anyone be subjected to any form of violence from either public or private sources.[15] Every person has the right to freedom of expression including freedom to seek, receive, or impart information or ideas.[16] Advocates like other Kenyans have the right to fair labour practices and to work in reasonable working conditions.[17] From the aforementioned constitutional provisions and the Basic Principles on the Role of lawyers adopted by the United Nations, this study seeks to advance a case for the security protection of advocates in Kenya.

 

1. Literature Review

The attacks and harassment of advocates dates many years back and almost every country has had a case relating to advocates brutality. The attacks rage from threats to real attacks, intimidation, maiming, arbitrary arrests and killing.

In November 2016, Shahid Jamal, a 36 year old advocate was brutally assaulted by a group of youths in Bhopal and the police marked it as one of personal enmity. In July 2017, Mahendra Singh, a government lawyer, was beaten up by a group of women with slippers in his office in the Guna district court. They claimed that the lawyer used filthy language and insisted they should go to his home. Ashok Vishwakarma is another advocate who was hit on his head with a hard object by 3 accused persons in December 2017. These are just but a few incidences of what advocates in different states of India go through. It is a reflection of what is experienced by advocates in Kenya.[18]

Due to the rise of assaults, advocates from different states in India protested demanding for legal protection. The state of Madhya Pradesh is in the process of passing Advocate Protection Bill for the protection of its lawyers. This was hastened by the death of the first woman president Darvesh Yadav of U.P. Bar Council when she was shot dead by her colleague two days from her election results.

It is their intention that the Act should include the following provisions[19];

1. a) Keeping a check on the frivolous petition against the advocates by rivals of their clients seeking to exert pressure on them.
2. b) Appointing a judicial committee to look into cases of assault on advocates while stressing the need for a law to protect them and their dignity.
3. c) There will be a provision that can safeguard the interests of the Advocates acting in good faith during Judicial or Quasi-judicial proceedings. No court is to take cognizance of an offence alleged to have been committed by any advocate while acting or purporting to act in the discharge of his duty as prescribed by any statute, without the previous sanction of the State Bar Council.
4. d) There will be established an independent body to consist of designated Senior Advocate, Advocate as chosen by the Bar & a person not below the rank of High Court Judge to prescribe the speedy procedure for the disposal of the cases under the Act and also to make enquiry and decide into the matters of Professional Misconduct by the Advocate, to replace the provisions of Advocates Act which has failed to uphold the professional conduct within the Legal Profession and daily instances are real example of the same and also for the cases of assault against the advocates or any matter arising out from the Advocates’ Protection Act.
5. e) There should be established a support fund for any ailment, death, new junior advocates and any other exigency faced by the Advocate.[20]
6. f) Any person accused of exerting undue pressure on a lawyer or obstructing their work would attract 7 years of jail.[21]
7. g) There should be no use of derogatory language in relation to an advocate during any judicial or quasi-judicial, and if made so, it shall be a cognizable and non-bailable offence.[22]
8. h) Construction of adequate chambers for advocates in the court premises at affordable rates and regulate the sale, transfer and disposal of the same as per the procedure to be established by law.

The intensity and number of attacks against advocates in the Philippines has been noted to take a rise since President Duterte took office in 30th, June 2016. The advocates are attacked inter alia through death threats, labeling (i.e. classifying persons as “enemies of the state” or otherwise) and surveillance. Most of the attacks are associated with the professional duties the advocates undertake. Those noted to be at higher risks of extra-judicial killings are the advocates who represent government critics and high profile cases such as political opposition leaders, human rights defenders and journalists, terrorists and drug related crimes. The government has been noted as a culprit to the attacks and extra-judicial killings faced by Advocates and it shows no sign of preventing reoccurrence of violations by conducting investigations, holding the perpetrators accountable and having justice done for the victims.[23]

The United Nations Basic Principles on the Role of Lawyers require that the Philippine government, being a state should ensure that advocates are protected when their security is threatened because of carrying out their legitimate professional duties, and not be identified with their clients or their clients’ causes. The State has a duty to guarantee and respect the rights and freedoms of advocates for example, freedom of expression and assembly.

From the foregoing, various organizations and individuals petitioned the State of Philippines with the following recommendations:

1. a) The State should take reasonable measures to guarantee the safety and physical integrity of advocates, this being inclusive of the provision of adequate protection measures, in consultation with the persons concerned;
2. b) The State should consistently condemn all form of attacks and threats against advocates at all political levels, publicly and in strong terms;
3. c) The State should effectively, promptly and independently investigate all the extrajudicial killings and attacks against advocates with the aim of bringing the culprits to justice in proceedings that respect international fair trial standards; and,
4. d) The State is to fully comply with and create awareness about the core values underlying the legal profession, amongst others by bringing the UN Basic Principles on the Role of Lawyers to the attention of relevant stakeholders, especially members of the executive, police and the military.

From the analysis of India and the Philippine, it is evident that advocates face attacks and extrajudicial killings on basis of their professional duties which is in relation to Kenya. Sadly, there is no state with an Advocate Protection Act. However, India is in the process of passing the Advocate Protection Bill. Kenya can learn from India and borrow the anticipated provisions for their Advocate Protection Act. Further, a state like Philippines is in the same position as Kenya and can henceforth work on the International provisions on protection of advocates in the course of their work. Advocates serve the society to its fullest, and as judges enjoy privileges, advocates are entitled to protection.

1. Advocates Protection Case

Advocates have varied duties that relate to their commitment of upholding the rule of law and administration of justice. They occupy a special intermediary position between the formal machinery of justice, which is technical and bureaucratic, and the people who must deal with the court, when they seek justice, or support the cause of those who do so, or when they are brought to the requirements and sanctions of justice. The Constitution of Kenya 2010 provides that it is the duty of the State to ensure that all persons access justice.[24] This is fundamentally the binding duty of every advocate. Their duties rage from duty to the public, duty to the court, duty to the client, duty to the other advocate(s) and duty to the witness. Sometimes in the fulfillment of these fundamental duties, advocates put their career and life at risk. Yet the legal profession is governed by strict rules of conduct that set standards of application which must be adhered to by the advocate at all material times. It is from the aforementioned expectation of the advocate that we analyze some of the ethical duties of the advocate and from the duties we advance the case for their protection.

 

1. Duty to the Public

One of the greatest roles of the advocate is the promotion and protection of public good. This requires a genuine legal profession that does not just operate for business, and make law a noble calling rather than just a job.

Their role is to assist the society in realizing administration of justice through integrity and adherence to the rule of law.

This entails ensuring adequate protection of human rights, equality before the law and compliance of the state to its obligations in international law. Advocates become custodians and watchdog that must ensure fulfillment of this rule of law on behalf of the lay people. This duty sometimes places the lives of advocates at risk since the greatest violators of human rights and the rule of are governments and states. In order for the advocates to discharge this duty faithfully to the public, they need protection and assurance of their security.[25]

1. Duty to the Court

Advocates as officers of the court are as such required to be of utmost assistance to the court. Their duty in administration of justice obliges them to assist the court as they fulfill their duties to the client and to the opposing advocates. They must involve themselves in tactics that are within the law, honest and respect to courts and tribunals. They must always act with professionalism and integrity.

They must advise their clients about the judicial processes with the intention of protecting confidence in the administration of justice. This duty may experience a myriad of challenges bearing in mind the temptations from clients to influence the judicial systems through corrupt means and illegal tactics. The advocate just like judicial officers in the name of judges and magistrates should be accorded state security when they are handling sensitive cases.[26]

1. Must always act in utmost honesty and integrity

Advocates are duty bound by the legal profession which must always be maintained. They must maintain the integrity of the profession through honesty and personal integrity in all their dealings with each other, their staff, their clients, members of other professions and the public. This fosters confidence in the profession and fosters moral standing and public image of the profession. This duty requires that they be responsible stewards and hold in trust all information and resources given to them by their clients. They are at the same time supposed not to engage themselves in fraudulent dealings while discharging this duty and this is where their duty to the public must come in. In the process of trying to balance this conflicting rights an advocate is exposed to threat if he reveals the fraud and at the same time he is required to put the rule of law and the interest of the public first. This conflicting right requires an assurance of protection of the advocate if he is to be expected to maintain integrity when faced with such dilemma.

1. Fidelity to the law

The main aim of the legal profession is to uphold the rule law and due process in the administration of justice. Advocates are officers of the court and must at all times demonstrate respect to the law in all their dealings. Often courts have been accused of being involved in corrupt dealings. In 2010, a Task Force led by Justice William Ouko identified corruption as one of the major challenges that was affecting Judiciary and the delivery of justice. Usually, advocates find themselves at the centre of a high profile case sometimes involving the wealthy and powerful. They become conduits to facilitate bribery, fraud, abuse of judicial office and receiving of favours. In order to resist such vices and remain faithful to the rule of law, advocates must be assured of their security and protection from the wealthy and the powerful who may be offended by the rejection and fear to be exposed.

1. Must keep the client’s personal property separate from his or her own property

In Kamau John Kinyanjui v. Republic (2010)[27] it was stated that an advocate cannot commingle his/ her own assets or property with that of the client. He/ she should have a trust account into which they deposit all the money belonging to their clients. An advocate cannot appropriate, convert or reveal information regarding any funds of the client held in trust or otherwise under the advocate’s control without the express authority of the client.[28] Advocates have been subjected to threat of prosecution and intimidation by states in the guise of investigations. Investigative officers often demand that advocates reveal the transaction even without court order. In the recent time, the Ethics and Anti-Corruption Commission (EACC) and lawyer Professor Tom Ojienda have been embroiled in court battle regarding monies that were paid into Ojienda’s advocate-client account by Mumias Sugar Company Ltd and was subject to investigation. Whilst it is the duty of EACC to investigate and fight the vice of corruption, it is in bad faith to try and investigate an account held in trust without following the due procedure. Advocates need to be protected from such intimidation and harassment for them to discharge faithfully their duty of keeping safe the clients’ account.

1. Independence

International Association of Democratic Lawyers (IADL) noted that, everywhere in the world lawyers and independent judges are under threat. An advocate is required to be free from undue influence whatsoever, and instead nurture and uphold the legal profession as it is. This duty sometimes is interfered with by States especially when the State officers fail to comply with the rule of law.[29] On 18th October 2020, The Guardian reported that there was allegation that the Home Secretary was targeting attacks and hostility to immigration lawyers. The report indicated that lawyers were being vilified for performing their job. This came after there was an attack in a law firm with the Home Secretary accusing “activist lawyers” of frustrating the removal of migrants. The work of advocacy should never be confused with frustrating any government policy, but always the administration of justice and they should be independent of any other organ in discharging this duty. The only guiding principle should be the rule of law. A strong and independent legal profession can also serve as a mechanism for political accountability. Hence, advocates must be protected from harassment by States and governments when they challenge policies and administrative decisions that don’t follow the rule of law.[30]

While commenting on the International Commission of Justice (ICJ) Mission Report of 2016, Justice Michael Kirby AC observed that, the independence is not provided for the benefit or protection of judges or lawyers as such. Nor is it intended to shield them from being accountable in their professional duties and to the general law. Instead, its purpose is the protection of the people affording them an independent legal profession as the bulwark of a free and democratic society.[31]

1. Duty to maintain confidentiality

Assuring the client of the safety of the information they tell enhances the client’s trust and enables them to be more open and comfortable when communicating with the advocate. This duty sometimes places the advocate in a difficult situation when it comes to holding sensitive information. Such information can originate from a client but may be a threat to national security or to the public. They may be required by their duty to the public to share the information with the security agents, thus threatening their lives from attack by the clients. At other times the security agents may be conducting investigation and may be inclined to believe the advocate may have some information they have received from their clients and they demand through threats and harassment to get the required information. The Principle of Legal Professional Privilege/Secrecy has come under threat where sometimes governments propose or pass legislation that mandates disclosure of confidential clients information. To safeguard this duty, the advocate must be protected from any form of threat or harassment.[32]

1. Duty to act only on the client’s instructions

The International Association of Democratic Lawyers (IADL) submitted a petition to Turkish courts to free imprisoned lawyers.

The lawyers were imprisoned in March 2019 to 159 years in prison for providing legal defense to political prisoners in Turkish jails. The Turkish government was not impressed that the advocates were seemingly supporting political activists who were opposed to the government policies and the violation of human rights. The Turkish administration failed to recognize the role of the advocate as competently acting on behalf of the client and as such they are agents of the client. When they take brief from clients and analyze legal issues, they exercise knowledge of the law applicable to the client’s case. This does not in any way make them party to the case and should therefore be protected from suffering harassment because of their clients’ case.[33] Besides, one of the principles of fair hearing is that an accused person has the right to be represented by an advocate of their choice.[34] Despite these provisions, advocates are unable to represent their clients without external interference or pressures and without undue encroachment on the principle of legal profession of taking instructions from the clients and sticking to them. To achieve this obligation, they must be assured of protection.

1. Duty to zealously defend the client

The International Association of Democratic Lawyers (IADL) New York reported that, in May this year, over 75 organizations signed a petition in support of lawyer Steven Donziger an environmentalist lawyer who faced sanctions from a federal judge in the US.

This was due to his pursuit for a judgment against oil giant company over its environmental devastation in Ecuadorian Amazon. The Federal State was not impressed by the lawyers zeal in pursuing the judgment hence resulted into using federal court to instill fear to the lawyer. States and Governments sometimes fail to distinguish the advocate’s zeal in pursuing the just conclusion of a matter with personal interest. An advocate is ethically required that to represent the client in their legal pursuit and must follow all the steps and apply every skill to ensure the interests to the client are secured. In doing so the advocate is subjected to harassment and intimidation for zealously performing their duty. To ensure access to justice for all and protection of the integrity of judicial process, advocates must be provided with security to enhance their role of zealously defending their clients.[35]

4.1 Structural Framework on the Protection of Advocates

Stable societies all over the world are founded on the tenets of peace and security that are as a result of their respect for human rights, fundamental freedoms, rule of law and constitutionalism. It is this respect for the constitution and constitutionalism that forms a basis for the need to protect advocates who are the front line human rights defenders. Advocates assist states in ensuring there is full respect accorded to human rights, fundamental freedoms, democracy and the rule of law and principles of natural justice.[36] The need for the protection of advocates is firmly rooted in the Constitution of Kenya 2010 that recognizes the essential role that advocates and in extension civil society play as human rights defenders in meeting the dictates of its Chapter four the Bill of Rights and the contextually heightened risks faced in doing so. The constitution of Kenya, 2010 provides for security for all persons from any forms of violence whether it is of public or private nature[37]and guarantees every person to the right to life.[38]

These constitutional safeguards have repeatedly been violated leading to constant attacks and harassment. Such violations have been brought to the attention of the relevant institutions that should intervene and promote advocate’s safety. First the State has an obligation of ensuring the full respect of human rights and fundamental freedoms, and the promotion of democratic principles and institutions. The State has the primary responsibility for the protection of all persons since power has been donated to her by the people through democratic process. Similarly, the protection of advocates rests with the State at the first instance. Every effort including political good will must be put in place to ensure a conducive and tolerant environment for advocates to faithfully discharge their duties. States and Governments have been accused of attacking, intimidating and harassing advocates in the course of discharging their duties. The objective of establishing the national security organs and security systems is the promotion and guarantee of national security for all people. State should therefore not use the same police to harass advocates while attending to their clients despite the political affiliation or the offense they are accused of.[39] The State also has an obligation to protect advocates from violations by third parties on account of their duty as advocates.

Another institution is the Law Society of Kenya (LSK). This is an umbrella professional body for the advocates that is concerned among other issues the welfare of the advocates. LSK should be particularly concerned if harassment and intimidation of its members should be a reason why the rule of law and administration of justice should fail or human rights violations should happen with impunity. There should be a full department within LSK structure that should purposely be recording and following up any issues relating to members security. The department should among other responsibilities be pressing the government to provide security to any advocate handling sensitive matters or those who complain that their lives are in danger. Failure to address the concern shall result in many of them losing their lives or completely refuse to litigate on sensitive matters and will be silent in the face of human rights violations, extra judicial killings, impunity and disregard for the rule of law. This kind of scenario shall ultimately not be good for the country.[40] The department should at all times pay attention to note indicators associated with interference with the advocates’ duty. Some of the indicators were identified by the ICJ Mission Report include:

• Incidents of violence, harassment and intimidation of lawyers.
• Legislative attempts to limit the freedom of expression and freedom of association.
• Arbitrary arrests and detention of lawyers.
• Open and notorious attacks against lawyers by private actors and the public.[41]

Whenever any of the above indicators happen to an advocate, the department within LSK should take action immediately including alerting the International Bar Association, ICJ and the international community.

The Law Society of Kenya also actively ensure that the State enacts domestic laws, regulations and policies and practices to be compliant with commitments to international advocacy protection guidelines to guarantee the fundamental principle of fairness and due legal process.

The other institution is the Judiciary. While commenting in the 2016 ICJ Mission Report, The Honorable Michael Kirby an international jurist and former judge in Australia stated that where there is no independent legal profession there can be no independent judiciary, no rule of law; no justice, no democracy and no freedom.[42] In exercising its judicial authority, the judiciary should strive to ensure all relevant stakeholders involved in the delivery of justice are safeguarded. Hence the Judiciary in its structure should work towards ensuring the protection and safety of advocates. A safe and enabling judicial environment guarantees the overall welfare of an advocate in their duty towards the court and the public. The judicial system has in the past been used by the State to frustrate the work of the advocates and sometimes even jailing them for political reasons. Instead, the Judiciary should regard advocates as court officers who have the common goal of upholding the rule of law and the administration of justice.

1. Legal Framework on Security for Advocates

There are several legislations and international legal instruments that by dint of Articles 2(5) and 2(6) of the 2010 Constitution of Kenya that regulate the function and operation of advocates in Kenya. None of them directly provides for their security, but they lay the basis for further advancement of their security.

5.1 The Constitution of Kenya, 2010

The Constitution of Kenya 2010 stipulates that, the Constitution is the supreme law of the republic and binds all persons and all state organs at both levels of government.[43] It also provides that the values and principles of governance include the rule of law, democracy and participation of the people, human dignity, social justice, human rights, non-discrimination, transparency and accountability.[44] The Constitution goes further to reinforce this assertion by providing that the state shall not discriminate directly or indirectly against any person on any ground including race, sex, pregnancy, conscience, dress and beliefs.[45] It further provides that every person has inherent dignity and the right to have that dignity respected and protected.[46]

No person shall be deprived of freedom arbitrarily or without a just cause. Neither shall the person be subjected to any form of violence from either public or private sources or be subjected to torture in any manner whether physical or psychological. There is an advanced case that advocates face threat and attacks in execution of their duty. These constitutional provisions should be just cause for advocates to seek State protection in compliance with the constitutional provisions.

5.2 Law Society of Kenya Act no. 12 of 2012

The Law Society of Kenya (LSK) must rise to its greatest objective of representing, protecting and assisting members of the legal profession in Kenya with respect to conditions of practice and otherwise.

Part of the conditions affecting the legal profession in the performance of their duty is security. Advocate Charles Kanjama in an exclusive interview with the researchers of this work is the opinion that LSK has done well so far in ensuring its members are operating in a safe environment.[47]

5.3 The National Police Service act, 2014

The Act provides that among the functions and powers of the inspector general is to establish and devolve services of the Internal Affairs Units that are able and equipped to conduct investigations into police misconduct in a fair and effective manner and report directly to the Inspector General.[48] The Act goes further to provide that the Inspector General is required to cooperate with other public or private bodies to provide reliable police statistics on crime rates, detection rate, public confidence in the police as well as personnel statistics. On this ground, the Inspector General should always be attentive if any complains of harassment by advocates is made. The police should at all material times apprehend and bring to book any person accused of harassing advocates while performing their duty. There should a coordinated collaboration between the inspector of police and LSK while ensuring the safety of advocates.[49]

Among the functions of the Kenya Police Service under article 24 and the Administration Police Service under article 27 is to maintain law and order, preserve peace, protect life and property, investigate crimes, collect criminal intelligence, apprehend offenders and enforce laws and regulations with which they are charged.

5.4 Fair Administrative Action Act, 2015

This Act applies to all state and non-state Application agencies, including all persons exercising authority, performing judicial or quasi-judicial function under the constitution or any written law. It also applies to all persons whose legal rights or interests are affected by an action or omission. Advocates as officers of the court and regulated by this Act but has no provision for their security.[50]

5.5 The Advocates Act

This Act is the main law which deals with the advocates’ conduct. It defines the advocate, the process of admission to the bar, how they are registered and enrolled in Kenya. It also stipulates the penalties that advocates pay whenever they are found in breach of the rules set out in the Act. It makes rules for professional conduct and discipline for its members. As such the Act provides for self-regulation of the advocates and therefore no need of legislations that deprive advocates their independence.[51]

5.6 The Public Officer Ethics Act, 2003

This is an Act of Parliament to advance the ethics of public officers by providing for a Code of Conduct and Ethics for public officers and requiring financial declarations from certain public officers and to provide for connected purposes. In their duty to the court and to the public, advocates are expected to carry their duties in accordance with the rule of law and in preservation of the rights and freedoms of others.[52]

5.7 Judicial Service Act, 2011

This is an Act of Parliament to make provision for judicial services and administration of the Judiciary. The Act is meant to make further provision with respect to the membership and structure of the Judicial Service Commission, the appointment and removal of judges and the discipline of other judicial officers and staff. It is also to provide for the regulation of the Judiciary Fund and the establishment, powers and functions of the National Council on Administration of Justice, and for connected purposes. Among the objectives of the Act is to facilitate the conduct of the judicial process designed to render justice to all. Advocates as judicial officers are meant to assist the judiciary to render justice to all and any hindrance including insecurity is a threat to justice.[53]

5.8 International Bar Association (IBA)

This is a voluntary bar association of international legal practitioners, bar associations and law societies. Law Society of Kenya is a member and should labour to learn from other associations the measures placed in their regions to ensure advocates security. The IBA has enacted the international code of conduct for members to observe hence reinforcing discipline and conduct. This implies a further self-regulatory framework that does not require States interfering with the independence of the advocates.

5.9 Universal Declaration of Human Rights

The declaration of Human Rights mandates States to recognize the right of every individual and to claim awareness and act upon their inalienable rights and also the right to seek and receive help from human rights defenders in this context being advocates.[54]The right to defend human rights is a universally recognized right thus putting emphasis on the need for the protection of human rights defenders in this case advocates by the State and Government as firmly dictated by its commitments to the declaration as codified in the Constitution of Kenya. The advocate protection guidelines that the State ought to adhere to are based on the commitments to the declaration and are universally recognized and such should not be viewed as a move to create a new special class for the rights for advocates.

5.10 United Nations Congress on Prevention of Crime and Treatment of offenders

 

The 8th United Nations Congress on Prevention of Crime and Treatment of offenders declared the following in its preamble:

Whereas in the charter of the United Nations the peoples of the World affirm that their purpose is to promote and encourage respect for human rights and fundamental freedoms without distinction as to race, sex, language or religion and establish conditions under which justice can be maintained and proclaimed.

Whereas professional associations of lawyers have a vital role to play in upholding professional standards and ethics, protecting their members from persecution and improper restrictions and infringements, providing legal services to all need of them, and cooperating with governmental and other institutions in furthering the ends of justice and public interest. The Congress agreed among other things that governments shall ensure that lawyers are able to perform all their professional functions without intimidation, hindrance, harassment or improper interference. They be always be able to travel and consult with their clients freely both within their own country and abroad. It further resolved that lawyers should not suffer or be threatened with prosecution or administrative, economic or other sanctions for any action taken in accordance with the recognized professional duties, standards and ethics.[55] It was also required that States should provide a lawyer who is threatened as a result of discharging his functions with adequate security.[56] Finally, lawyers shall not be identified with their clients or their client’s causes as a result of discharging their functions. Kenya as member of the United Nations should localize the resolutions of the congress by adopting the resolutions and enacting an advocate protection Act.[57]

5.11 International Covenant on Civil and Political Rights (ICCPR)

 

The International Covenant on Civil and Political Rights provides that every human being has the right to life which shall be protected by law and no one shall be arbitrarily deprived of their life.[58] It further states that no person shall be subjected to torture or cruel, Inhuman and degrading treatment or punishment.[59]

The Covenant on also provides that every person has the right to liberty and security of person. This means that no one shall be subjected to arbitrary arrest or detention except as established by law, no one shall be deprived of their liberty.[60] It further stipulates that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence or to unlawful attacks on his honour and reputation. Everyone has the right to be protected by the law against such attacks.[61] The Covenant finally provides for the right of equality and protection before the law. Advocates not only form part of the persons to be generally protected on grounds of civil and political rights, they are also defenders of those who have been attacked. This makes the requirement for a special protection more important and more urgent.[62]

5.12 African Charter on Human and Peoples’ Rights

The African Charter on Human and Peoples’ Rights provides that every individual shall be equal before the law[63]and shall be entitled to equal protection of the law.[64]The Charter further states that human beings are inviolable and that every human being shall be entitled to respect for his life and integrity of his person and no one may be arbitrarily deprived of this right.[65]

The Charter provides that every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status and that all forms of exploitation and degradation of man, particularly slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited. Advocates are human beings who need this protection like any other person. However, being the human and people’s rights defenders especially in African countries, they should be accorded more security so that they can continue discharging this mandate without fear.[66]

1. Recommendation

Advocates as judicial officers play an important role in ensuring delivery of justice. This role has occasionally jeopardized the profession especially when handling highly sensitive matters. Such risks should be eliminated by the government in compliance with Articles 2(5) (6), 29 and 41. It is recommended that legislation be done on Advocates protection. The proposed legislation should labour to guarantee Security for advocates while discharging their duties. It should establish an Agency whose sole mandate shall be to ensure the safety of advocates.

Security organs should take great concern for advocates who are involved in sensitive matters and provide them with security. They should also work in collaboration with the LSK to ensure all measures taken are within the law and in the best interest of justice.

The Law Society of Kenya should be particularly attentive in fulfilling its mandate of protecting the welfare and security of its members. The association should enhance the public advocacy in the quest for the security of advocates. They should always call for regional or national protests and court boycotts in solidarity with the colleagues in case of an attack. They should always make it uncomfortable for those who attack advocates.

Proactively, LSK should engage the police on how to deal with advocates especially when they deliver service. There should be a memorandum of understanding between them and police because sometimes they suffer harassment when serving court orders or when they want to speak to their clients in police custody.

LSK should also engage itself in Public Advocacy.

They should continually advocate for the safety of their members and that of the public. They should always agitate and ensure there is security in court premises. They should always work hand in hand with the judiciary for the realization of the same.

LSK should identify members who may become targets and demand that they be provided with security. Advocates themselves should work to ensure the security of their premises. Security measures in their chambers will be paramount for themselves, clients and other staff.

CONCLUSION

 

Advocates play a very important role in the legal systems. Their lives matter and should never be subjected to torture by those who want to destroy the rule of law. The government should take reasonable measures to guarantee the safety and physical integrity of advocates. All form of attacks and threats against advocates should be condemned at all political levels, publicly and in strong terms. The State should effectively, promptly and independently investigate all the extrajudicial killings and attacks against advocates with the aim of bringing the culprits to justice. The State should fully comply with and create awareness about the core values underlying the legal profession, amongst others by bringing the UN Basic Principles on the Role of Lawyers to the attention of relevant stakeholders, especially members of the public, the executive and the security organs. This should be done in collaboration of the LSK.

 

 

 

REFERENCES

JOURNALS, ARTICLES AND REPORTS

A report by the IBA’s Presidential Task Force on the Independence of the Legal Profession

Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE [1990]

Foreign Policy, No.203, Special Issue

ICJ Mission Report 2016

Lawyers’ Rights Watch Canada

Robert Bell and Caroline Abela, ‘A Lawyer’s Duty To The Court’ (January 2009) The Advocates’ Society

Sylvia Corthorn, Kelly Santini and Reena Goyal, Fraser Milner Casgrain, ‘A Lawyer’s Duty To Society'(21 January 2008) Symposium on Professionalism

INTERNET SOURCES

Dublin Declaration -Security of human rights defenders: time for OSCE to act , adopted by the participants of the Parallel Civil Society Conference, Dublin, 5 December 2012, http://www.civicsolidarity.org/sites/default/files/dublin_declaration_on_human_rights_defenders_final.pdf

Freedom House, ‘Philippines: Attacks Against Lawyers Escalating’ (September 19, 2019), https://freedomhouse.org/article/philippines-attacks-against-lawyers-escalating accessed on 30 July 2020

https://Hivisasa.com accessed on 20 July 2020

https://allafrica.com accessed on 20 July 2020

https://Iadllaw.org2020/06/submit-a-petition-to-Turkish-courts 8 August 2020

http://Iadllaw.org/2020/05/over475lawyers-legal-organization accessed 12 August 2020

https://iadllaw.org/international-review-of-contemporary-laws accessed 8 August 2020

Lalita Kumar Kosta, ‘Threatening Advocates will bring you behind bars’ (Hindi News Article, 17 April 2020), https://www.patrika.com/jabalpur-news/advocate-protection-act-implemented-in-mp-state-3010649/ accessed on 30 July 2020

Latest News, ‘The State Government has approved the Act which provides jail term of 7 years for threatening an Advocate’ (Latest Laws, 17 April 2020) https://www.latest laws.com/latest-news/this-state-govt-has-approved-the-act-which-provides-jail-term-of-7-years-for-threatening-an-advocate/ accessed on 30 July 2020

Rakesh Dixit, ‘Advocate Protection Bill: A Sense of Security’ (India Legal, 17 April 2020) https://www.indialegallive.com/did-you-know-facts-about-news/perspective-news/advocate-protection-bill-a-sense-of-security-48868 accessed on 20 July 2020

TNN, ‘Advocate Protection Act to be implemented in the State: Chief Minister Shivraj Singh Chouhan’ (The Times Of India

17 April 2020) https://timesofindia.indiatimes.com/city/bhopal/advocate-protection-act-to-be-implemented-in-state-chief-minister-shivraj-singh-chouhan/articleshow/64153630.cms. accessed on 30 July 2020

www.nation.co.ke accessed on 20 July 2020

www.theguardian.com accessed 8 August 2020

 

[1] Advocates Act Cap 16 s, 2

[2] Advocates Act Cap 16 s, 10(a)

[3] Advocates Act Cap 16 s, 10(b)

[4] Advocates Act Cap 16 s, 10(c)

[5] Foreign Policy, No.203, Special Issue

[6] A report by the IBA’s Presidential Task Force on the Independence of the Legal Profession

[7] Constitution of Kenya 2010, Article 26

[8] www.nation.co.ke accessed on 20 July 2020

[9] Lawyers’ Rights Watch Canada

[10] https://Hivisasa.com accessed on 20 July 2020

[11] https://allafrica.com accessed on 20 July 2020

[12] Constitution of Kenya 2010, Art 48

[13] Ibid Art 4

[14] Ibid Art 10

[15] Ibid Art 29

[16] Ibid Art 33

[17] Ibid Art 41

[18] Rakesh Dixit, ‘Advocate Protection Bill: A Sense of Security’ (India Legal, 17 April 2020) https://www.indialegallive.com/did-you-know-facts-about-news/perspective-news/advocate-protection-bill-a-sense-of-security-48868 accessed on 20 July 2020

[19] ibid

[20] TNN, ‘Advocate Protection Act to be implemented in the State: Chief Minister Shivraj Singh Chouhan’ (The Times Of India 17 April 2020) https://timesofindia.indiatimes.com/city/bhopal/advocate-protection-act-to-be-implemented-in-state-chief-minister-shivraj-singh-chouhan/articleshow/64153630.cms. accessed on 30 July 2020

[21] Latest News, ‘The State Government has approved the Act which provides jail term of 7 years for threatening an Advocate’ (Latest Laws, 17 April 2020) https://www.latest laws.com/latest-news/this-state-govt-has-approved-the-act-which-provides-jail-term-of-7-years-for-threatening-an-advocate/ accessed on 30 July 2020

[22] Lalita Kumar Kosta, ‘Threatening Advocates will bring you behind bars’ (Hindi News Article, 17 April 2020), https://www.patrika.com/jabalpur-news/advocate-protection-act-implemented-in-mp-state-3010649/ accessed on 30 July 2020

[23] Freedom House, ‘Philippines: Attacks Against Lawyers Escalating’ (September 19, 2019), https://freedomhouse.org/article/philippines-attacks-against-lawyers-escalating accessed on 30 July 2020

[24] The Constitution of Kenya, Article 48

[25] Sylvia Corthorn, Kelly Santini and Reena Goyal, Fraser Milner Casgrain, ‘A Lawyer’s Duty To Society'(21 January 2008) Symposium on Professionalism

[26] Robert Bell and Caroline Abela, ‘A Lawyer’s Duty To The Court’ (January 2009) The Advocates’ Society

[27] Kamau John Kinyanjui v. R [2010] CA 295 of 2005

[28] Code of Conduct and Ethics for Advocates 2016, Rule 5

[29] https://iadllaw.org/international-review-of-contemporary-laws accessed 8 August 2020

[30] www.theguardian.com accessed 8 August 2020

[31] ICJ Mission Report 2016

[32]Ibid

[33] https://Iadllaw.org2020/06/submit-a-petition-to-Turkish-courts 8 August 2020

[34] Constitution of Kenya Art 50

[35] http://Iadllaw.org/2020/05/over475lawyers-legal-organization accessed 12 August 2020

[36] ”Dublin Declaration -Security of human rights defenders: time for OSCE to act ”, adopted by the participants of the Parallel Civil Society Conference, Dublin, 5 December 2012, http://www.civicsolidarity.org/sites/default/files/dublin_declaration_on_human _rights _defenders_final.pdf

[37] Constitution of Kenya 2010, Article 29

[38] ibid Article 26

[39] Ibid art 239

[40] Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE [1990]

[41] ICJ Mission Report 2016

[42] Ibid

[43] Constitution of Kenya 2010, Article 2(1)

[44] ibid Article 10

[45] ibid Article 27(4)

[46] Ibid Article 28

[47] Law Society of Kenya Act, Section 4(d)

[48] The National Police Service Act, Section 10(p)

[49] The National Police Service Act, Section 10(5)

[50] Fair Administrative Action Act, Section 3

[51] The Advocates Act, Section 88.

[52] Public Officer Ethics Act, Section 10

[53] Judicial Service Act, Section 3

[54] UN Declaration on Human Rights Defenders, Article 1, http://www.ohcr.org/Documents/Issues/Defenders/Declarations/declaration.pdf accessed 25 August 2020

[55] UN Congress on Prevention of Crime and Treatment of Offenders, Article 16

[56] UN Congress on Prevention of Crime and Treatment of Offenders, Article 17

[57] UN Congress on Prevention of Crime and Treatment of Offenders, Article 18

[58] International Covenant on Civil and Political Rights, Article 6(1)

[59] International Covenant on Civil and Political Rights, Article 7

[60] International Covenant on Civil and Political Rights, Article 9(1)

[61] International Covenant on Civil and Political Rights, Article 17

[62] International Covenant on Civil and Political Rights, Article 26

[63] African Charter on Human and Peoples’ Rights, Article 3(1)

[64] African Charter on Human and Peoples’ Rights, Article 3

[65] African Charter on Human and Peoples’ Rights, Article 4

[66] African Charter on Human and Peoples’ Rights, Article 5