THE LEGAL PROFESSION AND THE NEW CONSTITUTIONAL ORDER IN KENYA YASH PAL GHAI JILL COTTRELL GHAI Editors THE LEGAL PROFESSION AND THE NEW CONSTITUTIONAL ORDER IN KENYA Copyright © ICJ and Authors, Nairobi ISBN 978-9966-054-07-4 Year of publication 2014 This book is part of the ICJ/KAS annual series on Judici- ary Watch Report. The printing of this book has been possible thanks to the support of the Rule of Law programme of the Konrad Adenauer Stiftung Cover design & Layout by John Agutu Email: [email protected] Printed by Franciscan Kolbe Press, P.O. Box 468, 00217 Limuru (Kenya) Email: [email protected] CONTENTS Acknowledgements. ......................................................................................... v About the Contributors ................................................................................... vii Legal Profession: Themes and Issues Yash Pal Ghai ......................................................................................... 1 The Legal Profession 1963-2013: All This Can Happen Again – Soon Pheroze Nowrojee ................................................................................... 33 The 2010 Constitution of Kenya: Its Vision of a New Bench-Bar Relationship Willy Mutunga ......................................................................................... 59 The Legal Profession and Crisis of Ethics PLO Lumumba ........................................................................................ 77 Professional Integrity and Disciplining of Advocates: Room for Improvement George Kegoro, Anita Nyanjong and Janet Milongo ............................. 101 Legal Education and Lawyers Patricia Kameri-Mbote ........................................................................... 121 The Attorneys-General: Upholders or Destroyers of Constitutionalism? Yash Pal Ghai ......................................................................................... 139 The Director of Public Prosecutions and the Constitution: Inspiration, Challenges and Opportunities Waikwa Wanyoike ................................................................................... 167 Access to Justice: The Paralegal Approach Jedidah Wakonyo Waruhiu and John Justice Odhiambo Otieno ........... 185 iv THE LEGAL PROFESSION AND THE NEW CONSTITUTIONAL ORDER Legal Aid in Kenya: Building a Fort for Wanjiku Caroline Amondi ..................................................................................... 201 Justice without Lawyers: Juridical Structures and Practices of Law in Korogocho Slums Steve Akoth Ouma ................................................................................... 221 The Bar: Challenges and Opportunities Apollo Mboya.......................................................................................... 241 Table of Cases ................................................................................................. 253 Index ................................................................................................................ 257 ACKNOWLEDGEMENTS The ICJ Kenya has incurred a number of debts in the preparation and publi- cation of this book. Its greatest debt is to Yash Ghai for identifying the themes for and authors of the chapters of the book and working closely with the authors. ICJ is grateful to Jill Cottrell Ghai for her research and assistance with the editing of the book and for preparing the index. The ICJ Kenya is grateful to the authors for their thoughtful and insightful chapters. ICJ Kenya also extends its profound gratitude to Konrad Adenauer Stiftung Foundation for providing the fi nancial support towards the production of this pub- lication. We appreciated the invaluable support of Prof. Christian Roschmann, Dr. Arne Wulf and Mr. Peter Wendoh from the KAF team who were involved with this project. ICJ Kenya thanks the Strathmore University Press for its professionalism and speed with it printed and published the book, and to John Agutu for designing and formatting the book. The ICJ Kenya thanks its staff, Anita Nyanjong and Janet Milongo, who, to- gether with Antony Kamaru, took responsibility for the administration of the pro- ject for the book. Lastly, ICJ Kenya is cognisant of the support of its members, the council and secretariat staff for their continued support and focus on judicial reforms. We trust that you will fi nd the book interesting and useful. George Kegoro, Executive Director. ABOUT THE CONTRIBUTORS Caroline Amondi Caroline holds an LL.B from Mangalore University and and LL.M in International Constitutional and Human Rights Law from Pondicherry University. She has attained over eleven years working experience and exposure in civil, corporate, commercial and criminal litigation along with ADR mechanisms having worked for the law firms of Wasuna & Co. Advocates, Otieno, Ragot & Company Advocates and Aboge & Co. Advocates. She is currently working with the National Legal Aid & Awareness Programme (NALEAP) under the Office of the Attorney General and Department of Justice as the Ag. National Coordinator and Legal Aid officer. The position of the Ag. National Coordinator gives her an opportunity to network with key legal sector institutions and stakeholders in the justice sector, both at the county, national and regional levels. She has also had the opportunity to build and strengthen network of legal aid providers at county and national level. NALEAP is a member of the Kenya National Working Group of Supporting Access to Justice for Children and Youth in East Africa (SAJCEA). Jill Cottrell Ghai Having graduated with LLB from the University of London (London School of Economics) and then with LLMs from London and Yale, she was a university law teacher for 40 years. She has also worked in the Constitution Advisory Support Unit, UNDP, Nepal (2007-8), and has carried out various consultancies on constitution making. She is now a Director of the Katiba Institute in Nairobi, and does a good deal of research for cases, and writes in the press and for other publications, on matters relating to the interpretation and implementation of the Constitution, mainly for the Institute. She has authored, co-authored or edited several books on human rights, the Constitution, defamation and legal research. viii THE LEGAL PROFESSION AND THE NEW CONSTITUTIONAL ORDER Yash Pal Ghai Educated at Oxford and Harvard, and called to the English Bar by the Middle Temple, he has been a law teacher and adviser on the making of constitutions in a number of countries in Asia and Africa. He taught at the University of East Africa, Warwick University, and Hong Kong University. He was visiting professor at Yale, Harvard, Toronto University, the National University of Singapore, and University of Wisconsin, among others. His research interests include constitutionalism and human rights, ethnic conflicts, sociology of law, and federalism and autonomy. He has written or edited about 20 books, including Public Law and Political Change in Kenya; The Political Economy of Law: A Third World Reader Perpectives; Law, Politics and Government in Pacific Island States; The Law, Politics and Administration of Decentralisation in Papua New Guinea (with Anthony Regan), Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law; Ethnicity and Autonomy: Negotiating Competing Claims in Multi-Ethnic States His most recent publications include The Constitution of Kenya: An Instrument for Change, Ethnicity, Nationhood and Pluralism: Kenyan Perspectives (2013) (both with Jill Cottrell Ghai), Autonomy: Practising Self-Government and Constitution and Rule of Law in China’s Hong Kong: The Contribution of the Court of Final Appeal (2014). He was the Special Representative of the UN Secretary General for human rights in Cambodia 2005-2008. Patricia Kameri-Mbote Patricia is a Professor of Law and Dean at the School of Law, University of Nairobi. She obtained her doctorate in law (Juridical Sciences Doctorate) in 1999 from Stanford Law School having previously studied law at the following Universities: University of Nairobi (Bachelor of Laws, 1987), Warwick (Master of Laws, 1989), University of Zimbabwe (Postgraduate Diploma in Women’s Law 1995); and Stanford (Juridical Sciences Master (1996). She is Senior Counsel; has been an Advocate of the High Court of Kenya since 1988 and has been engaged in the legal academy in teaching and research for over 20 years at various Universities around the world – Nairobi, Kansas, Stellenbosch, Zimbabwe. She also serves as external examiner to the Faculties of Law at the following Universities: London, Makerere, Witwatersrand, Australian National University, Dar-es-Salaam Westminster, Pretoria and Kent. She also contributed to the planning, initiation, launch and implementation of Strathmore Law School by developing the law curriculum and taking it through the accreditation processes among other related roles. Patricia is passionate about justice in society, gender equality, environmental sustainability, equitable land reform and legal scholarship and has dedicated a lot of time to these issues CONTRIBUTORS ix over time. She has published widely in the areas of her research interest which include: environment and natural resources; human rights; women’s rights: property rights - land and intellectual property; biotechnology policy and law; and legal institutions - the judiciary and legal education institutions. George Kegoro George Kegoro is the Executive Director of the Kenyan Section of the International Commission