Can LSK save the Judiciary?

The Law Society stands as a bulwark against creasingly iron-fisted Executive, and their next representative at the Judicial Service Commission will determine how eloquently they can articulate independence and rule of law.

By Franklin Mbogori

In a properly functioning democratic system of Government, the principle of judicial independence towers above all else. Due to the constitutional design of modern governments, the Executive branch invariably retains monumental powers of the state. In a presidential system like ours, there are endless opportunities for mischief if a regime hostile to constitutional checks assumes control. Hence, the Constitution and the judiciary – the organ assigned authority to breathe life into the Constitution – become the natural target of regimes that seek to destroy constitutional guarantees of life, property, liberty, due process, and other rights and freedoms.

During his many colorful campaign events in the last general elections, President William Ruto (then deputy president) frequently emphasized the need to embrace the rule of law as a country. With his usual eloquence, he often condemned his predecessor for what he saw as illegal deployment of state power for political ends. He denounced the CID police as attack dogs released on him to derail his ascent to power. More than once, he disapproved of extra-judicial executions that had become rampant in the country. Preaching like a dying man, he extolled the virtues of judicial independence, human rights, the rule of law, and police accountability. Gullible Kenyans were mesmerized and endorsed him for the top job.

Recently, in the span of a month, the President has twice threatened to send his opponents to their maker. While on a tour of the former Western province, he was captured in an angry outburst threatening an Asian businessman with interests in the sugar sector:

“Nimewambia hawa wote hapo watoke. hiyo kampuni [Mumias Sugar Company] ni kampuni ya wananchi na tutaipangia upya. Hakuna kesi tutaentertain hapo. Kesi watoe, na wao wenyewe watoke. Nyinyi mnanielewa? Tunaelewana? Na nimewambia mambo ni mangapi? Matatu. Wakitaka kuniletea kisirani, either waame Kenya, ama nitawaweka jela, ama wasafiri waende mbinguni.” [“I have told them to leave. That company [Mumias Sugar Company] belongs to the people, and we will reorganize it. We will not entertain any lawsuits there. Let them withdraw the case, and let them get out [of the company]. Do you understand me? Are we clear? And let them know they have three options. If they insist on making trouble, they will have to leave Kenya, or I will put them in jail, or I will send them to heaven.”

Where does this leave us as a country when the sitting President views himself as judge, jury, and executioner all rolled into one? This is just one incident in a string of events that have left many questioning the government’s commitment to constitutionalism and the rule of law. The recent widespread execution of demonstrators in opposition zones has perhaps left a permanent dent in Ruto’s otherwise dismal human rights record. This sudden change of attitude by the president, away from what he preached on the campaign trail, underpins the wisdom of repositing adjudicatory power in a non-political institution. And this institution must be preserved at all costs.

LSK and judicial independence

The Law Society of Kenya has historically played a proactive role in championing good governance and the rule of law. The current LSK Council seems united in pursuing this enduring vision. The serving LSK President, Eric Theuri, has been at the forefront of outing the UDA regime for its frequent transgressions of the constitution. Theuri, in a no-holds-barred tweet, boldly responded to the president’s earlier threats to turn to extrajudicial methods:

“This chilling statement constitutes 1) A threat to the right to life; 2) A threat to access to justice & right to seek judicial intervention; 3. A threat to the independence of the judiciary. It explains the recent abductions & sends a strong signal to the return of extra-judicial interventions.”

The LSK Council has since issued a joint statement with Amnesty International, Haki Africa, and the Kenya Human Rights Commission, condemning “the unfortunate statement by the head of state” and “call[ed] into question the Government’s commitment to upholding the right to life and protection of persons against cruel and inhumane treatment, as well as the right to equal treatment before the law and the right to live anywhere in the Republic of Kenya, and to own property.”

Longstanding resoluteness

Throughout its history, the LSK has been known for its uncompromising defence of public interest. In a fledgling democracy like Kenya, there is no bigger public interest than constitutionalism, good governance, and the rule of law. Indeed, section 4(b) of the Law Society of Kenya Act entrusts the LSK with the mandate to uphold the Constitution, advance the rule of law, and in the administration of justice. Section 4(d) further mandates the society to protect and assist the members of the public in matters relating to ancillary or incidental to the law. These are heavy responsibilities.

Following the dismantling of the independence constitution under the Kenyatta and Moi regimes, Kenyans turned to the streets to challenge the increasingly overbearing state.  Today, with a new constitutional order- hailed as one of the most progressive in the World- the battle for constitutionalism and democracy has returned to the corridors of justice. Unlike in the past, when the Judiciary was a tiny and emasculated institution, the post-2010 judiciary has become a critical actor in shaping the country’s trajectory—the more reason why its independence must be jealously preserved.

In the 1970s and 1980s, the Kenyan bar endured a sustained assault by the state for its resoluteness in challenging the rulers of the time. Detentions without trial became the norm, and the use of criminal charges to frustrate progressive Lawyers. Legendary Advocate Pheroze Nowrojee has documented this blatant use of coercive methods to instill fear among Advocates at the time. This resulted in fear and a lack of willingness among advocates to defend opponents of the Kenyatta and Moi regimes. The Kenyatta state ran Detainees’ Review Tribunals under detention laws synonymous with the infamous Soviet gulags. The tribunal was set up to give a facade of due process, but its purpose was to persecute so-called enemies of the state. Several Advocates were persecuted for their unwavering commitment to the rule of law. Two Advocates stand out: AR Kapila, the most prominent criminal defense lawyer at the time, was charged with numerous criminal offenses. Don’t forget that Kapila had vigorously defended Kenyatta at the Kapenguria trials. The regime also frustrated Byron Georgiadis, a famous criminal attorney, until he was forced to close his practice. Georgiadis had voiced his concerns in the media over the increasing executive control of the judiciary.

Moi detained John Khaminwa, Willy Mutunga, Lenny Gacheche, Gitobu Imanyara, Mohamed Ibrahim, Rumba Kinuthia, Gibson Kamau Kuria, Wanyiri Kihoro, Jean Marie Seroney, Gupta Ng’ang’a Thiong’o, Mirugi Kariuki, among many other Kenyans. He further utilized LSK Saboteurs and state poodles like Aaron Ringera and Kenneth Kiplagat to frustrate the LSK. The state allegedly sponsored the two Advocates to file frivolous suits against the society to derail the reform momentum. Moi also destroyed what was left of an independent judiciary and stripped the AG of office tenure. He abolished the office tenure of judges, made the Bill of Rights unenforceable, proscribed all independent voices such as the Nairobi Law Monthly, ushered in Mlolongo elections, and completely desecrated constitutional order in Kenya. During this prolonged period of darkness, the LSK stood valiantly and firm and remained unfazed. Nowrojee has prophesied that all this can happen again. (See Pheroze Nowrojee, The Legal Profession 1963-2013: All This Can Happen Again – Soon, 2013.)

The Ruto Challenge

Even at the lowest moments of the Kenyatta and Moi dictatorships, a Kenyan president has never publicly threatened to send an opponent to their maker/heaven. And so, we ask: Will Nowrojee’s prophesy be fulfilled through William Ruto? The Ruto regime presents a significant challenge to the lovers of the rule of law and constitutionalism. This being so, what then is the role of Kenyan advocates and all citizens of goodwill today? What is the place of the present-day Lawyer and the Law Society of Kenya?

Without a doubt, the foremost duty of the Law Society is to continue championing the Rule of Law and Good Governance. The Society is called upon to ensure that the current government upholds constitutionalism, the rule of law, and transparent and accountable governance. The sitting LSK President and the Council of the Society must be commended for carrying the legacy of moral courage passed on from one generation of Advocates to the other. The Society has been quite proactive in constitutional court, challenging the numerous illegal policies of the UDA/KK regime. Recently, the LSK moved to court to challenge President Ruto’s decision to lift the logging ban. The Society had taken the government to court over plans to import cooking oil duty-free. The Society similarly sued the state for lifting the GMO ban. This shows that the Society is not timid about confronting the governance challenges of the day.

Campaigns underway

The substantial governance challenges we face today demand heightened vigilance from contemporary Advocates. The most conspicuous arena requiring this vigilance is the ballot box, where Lawyers choose the Society’s members. The next President of the society and council members must exemplify individuals of unwavering moral character and integrity who shall embrace the Constitution as their guiding star.

They must be prepared to fulfill their statutory obligation of safeguarding the Constitution, promoting the rule of law, and serving the public interest. Their commitment to the public good should supersede personal convenience.

The election of the LSK Male Representative to the JSC is even more significant. The person elected to this position will represent the interests of the legal community and contribute to upholding the principles of good governance and judicial independence.

Evaluating candidates

The foremost quality of the LSK representative to the JSC, as all other LSK representatives, is high integrity and ethics. Lawyers should elect candidates who consistently demonstrate integrity and high ethical standards throughout their legal careers. The JSC plays a pivotal role in ensuring the judicial system’s integrity. It is, therefore, essential to elect a representative who upholds these values and can advocate for them within the commission.

Secondly, the ideal candidate must demonstrate unwavering commitment to Judicial Independence. They must have the spine to resist external pressures that could compromise the impartiality of the courts. Let’s look for candidates with a history of defending judicial independence and understanding its critical role in maintaining constitutional checks and balances. Avoid by all means candidates who are looking to join the JSC as leverage to pander to the Executive.

Third, the candidate must have legal expertise and experience. They must have a robust legal background and a proven track record of professional excellence. A candidate with a deep understanding of constitutional law and judicial matters will add value to JSC deliberations.

Fourth, the candidate must have a track record of active engagement with the LSK and a commitment to its vision. They must have been involved in LSK activities, committees, or initiatives. Members must be careful to avoid getting hoodwinked with social media razmataz and fake solidarity from impostors and hypocrites.

Finally, the ideal candidate must be accessible and accountable to the members. They must be willing to engage with LSK members, listen to their concerns, and provide updates on JSC activities.   (

* Watch out for an interview with LSK President Eric Theuri in our next issue.