To base appearance of advocates in Supreme Court on the basis of age experience would be self-defeatist

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By Emmanuel Yegon

While grilling Dr Smokin Wanjala for the position of the Chief Justice of Kenya on September 3, Attorney-General Githu Muigai asked him whether it was time to limit audience in the Supreme Court to only advocates who have practiced for a certain number of years.

On receiving a negative response to his question, the AG prodded on in an attempt to elicit a different response from Dr Wanjala by citing the fact that other jurisdictions such as the United States limit audience to the apex court to only lawyers with a certain number of years of experience in practice.

Further evidence of his firm believe that Supreme Court should be strictly an arena for “old boys” in practice was his eccentric opinion that the judges at the Supreme Court were not questioning advocates appearing before them more regularly and hard enough while on their feet.

Probably his reason for holding such an opinion is informed by the idea that young advocates dread to appear before the Supreme Court; if they do, they may never return as result of the flurry of fiery questions thrown at them in the course of their presentations.
It is my firm belief that the Supreme Court should be open to all advocates regardless of their experience.

First, the reason proffered by Justice Wanjala is the fact that while serving as a judge of the Supreme Court, he had seen incredibly brilliant young advocates appear before him.  His testimony is further buttressed by the statement of one of my former lecturers, who told us that, as a young lawyer, he gave his seniors a difficult time in court thanks to his thorough research and meticulous preparation. To wit, victory loves preparation.

Any attempts to bar young lawyers from appearing in the highest court are as illogical as prohibiting the talented Victor Wanyama from playing in the prestigious English Premier League simply because he hails from a lowly ranked country like Kenya, in terms of football. Advocates should be left to rise in the careers according to the speed of their ability, and not their age in practice.

Secondly, barring young advocates from appearing at the Supreme Court would be some sort of mild discrimination. In his interview of Dr Wanjala, the AG joked about lawyers who are “Senior Counsel” by historical default, meaning they are senior counsels due to their lengthy unprolific existence in the legal profession rather than as a result of extraordinary feats achieved in the profession.

It is thus possible to have great young lawyers and not-so-great old lawyers, so that barring the “great young” from appearing at the apex court by virtue of their age, should be frowned upon by virtue of article 27(4) which bars discrimination on the basis of, inter alia, age.

Thirdly, there is already frosty relationship that exists between the junior and senior advocates, as a result of differences arising from the proposed construction of the Arbitration Centre.  I suspect any proposal to limit appearance before the Supreme Court may raise similar resentment from the young advocates.

Fourthly, the strongest argument in favour of limiting appearance in the Supreme Court is that of comparative juxtaposition. The thread of the argument as argued by the Prof Muigai is that we should do so because established democracies like US do it.  But just because it is done in the US doesn’t make it best practice; not everything from US is best practice – an example is the fact that the ideological/political inclination of all the
Supreme Court judges in US is known. Such a custom is easily antithetical to our Constitution [Article 160(1)], which demands that the Judiciary act only in fidelity to the Constitution and the law in conducting its operations.

Fifthly, the Supreme Court itself is fairly young, since it was brought about by the 2010 Constitution. It is thus skewed logic to reason that only lawyers of particular age experience have a thorough comprehension of it.

To conclude, while this is my position, I must not be taken to be trivialising the time-proven importance of young lawyers learning from the seniors in practice. I have gained immensely and I’m still gaining from the priceless guidance and mentorship of senior advocates. After all, I also firmly believe that no book can replace the privilege of working under a great senior advocate.

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