Legalbrief | your legal news hub Saturday 02 October 2021 Advocates challenge senior counsel ‘members-only club’ rules Six Kenyan advocates asked the High Court’s constitutional and human rights division to find that the rules setting out criteria for qualification as a senior counsel should be declared unconstitutional. They also wanted a court order to stop the law society of Kenya from ‘in any way’ considering or recommending any advocate for senior counsel status. They took this step because, they argued, the present rules were discriminatory. By stipulating, among others, that senior counsel status could be conferred only after someone had argued a substantial case in a regional, higher or international court, the rules discriminated against other advocates who did not engage primarily in court work. What about other senior lawyers who chose to go into teaching law, who were in-house counsel or who specialised in conveyancing or other commercial transactions? they asked. These lawyers should be ‘treated equally’ when it came to consideration for senior counsel status, otherwise the system discriminated against them and in favour of those who had chosen to specialise in court work. The application was brought against the Attorney-General and the law society of Kenya, both of which argued that there was no ‘irrationality’ in rules that distinguished between certain groups of lawyers. The rules provided criteria for appointment as senior counsel. As far as the Attorney-General was concerned, they were rational because the privileges attached to senior counsel status were related to court work and would not benefit advocates who did not appear in court. The Attorney-General also complained that the applicants had not explained clearly how the rules were discriminatory. Added to this, the law society said the rules ensured that conferment of senior counsel rank was not arbitrary but there was a standard against which candidates were measured. Explaining why the senior counsel rules were discriminatory, the applicants said all advocates went through the same training before admission but they then specialised in different areas of practice. All the practitioners, in their various areas, should be considered and treated equally when applying for senior counsel status. Why should it be reserved for those involved in court work? If regulations were partial and unequal in the way they operated, they were unreasonable and ultra vires, they argued. Section 17 of the Advocates Act gave the President the right to confer the title of senior counsel to members of the law society of Kenya who showed ‘irreproachable professional conduct’ and who had given ‘exemplary service to the legal and public service’. Associated with this section were special rules explaining who was eligible. One of these rules was that the advocate must have argued a substantive matter in a superior, regional or international court and it was this latter criterion in particular that appeared to have aggrieved the applicants, said Judge Chacha Mwita. The ‘aggrieved’ advocates submitted that while the law opened the way for senior counsel status to be awarded to anyone whose conduct was excellent and who had delivered excellent professional work, the rules wrongly provided that only court work specialists were eligible. This distinction was not made in the law and so it was invalid to restrict conferment only to a certain group. The ‘answer’ seemed to lie in a consideration of the actual privileges conferred by senior counsel status, said the judge. These included having your matter called first, appearing in court wearing special robes, sitting in a part of court specially designated for senior counsel, along with other privileges that the law society decided were appropriate. ‘Simply put, senior counsel will have their cases called out and heard first whenever they appear in court,’ he said. How would the rule be discriminatory when ‘except for those advocates who litigate cases (in) court, the rest would not enjoy any of the privileges in rule 19, even if the rank of senior counsel was conferred on them.’ Then came a comment unlikely to go down well with opponents of the present system: ‘This being a members’ club,’ said the judge, ‘there had to be … reasonable criteria for one to be called to that “Senior Members’ Club.”’ I imagine opponents of the way senior counsel conferments are handled either object to the fact that advocates with senor counsel status behave, in their opinion, as though this was a members-only club or else they are ‘aggrieved’ at being forever kept from membership of this club. For the judge to speak glibly of senior counsel constituting a members’ club will thus rub salt into the wound. In the view of the court, the applicants did not put up convincing reasons to change the present practice. All they had done was to ‘plead inconsistency and leave the matter to the court, merely saying, ‘the rules are inconsistent with section 17 and therefore grant the petition’. No effort was made at all to show how each of the 20 rules … contradicts section 17 of the parent Act for them to be void on account of inconsistency. It is not enough to plead inconsistency or tension between the rules and the Act.’ To succeed, the applicants had to go further and ‘demonstrate how that is so’. They ‘fell short’ of doing so, however. The judge said he came to the ‘irresistible conclusion’ that the petition ‘was not well thought out’, that it was ‘done in a hurry and is unclear’. The petitioners may well be frustrated at losing the case, but their application usefully gives notice to the law society that some of its members are unhappy with the existing situation – and the reasons given by the court for finding against the applicants are such that, in theory at least, a reworked and improved petition on the same issue could be re-launched in the future. Judgment - Carmel Rickard.