Battling the Kenyan Leviathan

Battling the Kenyan Leviathan

Questions and reflections from the Law Society’s 100-years of history in restraining the Kenyan state 

BY GILBERT MUYUMBU 

More than 120 years since the first lawyers arrived in Kenya as vakils from India, the country’s premier bar association, the Law Society of Kenya (LSK), has emerged, evolved, fought battles, won some and lost others, all in an effort to ensure respect for rule of law across the country, not least by the Kenyan state. 

LSK’s precise origin is unknown, although some authors trace it to 1911. Prior to its formation, advocates practising in Kenya were regulated by Kenya’s High Court, based in Mombasa at the time. This changed in 1911 with the formation of the Mombasa Law Society. The shift of the colonial administrative headquarters from Mombasa to Nairobi came with a shift as well in the physical location of the Kenya High Court. With the High Court being established in Nairobi, lawyers in Nairobi formed the Nairobi Law Society. 

The Nairobi and Mombasa law societies merged in the early 1920s to form the LSK. The Mombasa Law Society remained in existence as a voluntary body. The Nairobi Law Society, on the other hand, took on a national outlook, with representatives from across the country, including those from the Mombasa Law Society. In 1949, the LSK was recognized officially through the Advocates Act and Section 3 of the Law Society of Kenya Ordinance, 1949, making its membership mandatory. 

Currently, the membership of the LSK is in excess of 15,000. It is managed by the LSK Council, which consists of the president, the vice president and 10 other members. Two of the council’s seats are reserved for advocates who do not ordinarily practice in Nairobi or Mombasa. A secretariat headed by a Secretary handles the day-to-day management of the Society. 

Based on the law establishing it, the LSK is a statutory body set up to promote the rule of law throughout Kenya. As a concept, rule of law entails firstly, that no one can be punished, unless so determined by a court of law; secondly, that all people are subject to the laws of the land and; thirdly, that the bill of rights enjoys supremacy. Since government is usually the most powerful entity, rule of law is mostly directed at controlling governmental power, where it demands that all government actions are bound by rules that are fixed and announced beforehand. 

Operating environment 

So, after more than 100 years of existence, what questions and reflections can we ask of the LSK in its mandate of promoting rule of law across Kenya, particularly as regards ensuring that successive governments in the country uphold the rule of law? Indeed, a lot can be extracted and learnt from the organisation’s long history. Yet perhaps the most important reflections and questions from this long history can best be understood if distilled into three broad analytical categories. 

The first category can comprise of questions and reflections around the general state of rule of law emanating from the behaviour of the various governments Kenya has had since the establishment of a modern state in the country on June 1, 1886. This category would help establish the general rule of law environment in which LSK has operated. The second category can comprise of questions and reflections on how the LSK reacted to the most egregious acts of violation of rule of law in the country and the relationship it cultivated with the state throughout its existence. 

To adequately answer these two first broad questions, however, a further third category of questions needs to be grappled with. This third category is separate from the first two categories due to the fact that it deals mainly with the question of the analytical tools required to find answers to the first set of questions asked. It comprises of the question of normative issues in the legal profession, the methodology to use in answering questions regarding LSK’s promotion of rule of law in Kenya and the appropriate theories to employ in trying to make sense of the massive data thrown up in LSK’s 100-year existence. Collectively, the three categories of questions can then help us construct a coherent journey out of LSK’s 100-year history as Kenya’s premier institution for protecting rule of law in the country. 

Starting with the first category, scholars have indicated how the Kenyan state, both colonial and postcolonial, has engaged in numerous violations of rule of law. These have had political, economic and social ramifications for the country. For political excesses, these comprise of actions of the state that mainly violate the rights of Kenyans to political freedoms. Economic excesses, on the other hand, involve state actions that mainly destroy the country’s economy and lead to impoverishment of ordinary Kenyans. As for social excesses, these comprise actions of the Kenyan state that disrupt social harmony among the country’s ethnic and other social groups, leading to ethnic distrust and social unrest. Unearthing these excesses provides a broad template from which one can tell the context in which LSK works to promote rule of law. Fortunately, there is already extensive literature in this area. 

For the second category, which establishes the reaction of the LSK to the most egregious violations of rule of law and relationship with the state, the key question here is how the organisation has restrained the state, and how the state fought back against this. The category can disclose the most significant battles the organisation had with the state over the question of rule of law, and the outcome of these battles. 

Identity 

Unlike the first category of questions, however, the details existing here are few and far in between, with only a few scholars engaging in this area of inquiry, with perhaps the most consistent being constitutional lawyer Prof Yash Pal Ghai. Other important accounts in this area include Paul Mwangi’s Black Bar, although unfortunately, the book may be out of print, given the difficulties involved in searching for it in local bookshops and libraries. A general pattern which emerges from the few works in this area indicate an organisation under constant threat of being co-opted, and which often buckles under the pressure as much as it resists the attempts. Within this general picture, however, there are accounts of individual leaders within the organisation whose record stands out for either standing up for certain principles or buckling under the weight of executive power. 

It is in the effort to establish the truth around the second category of questions that makes the third category of questions necessary. As indicated, this third category is focused mainly on the analytical tools required to find answers for questions regarding LSK’s reaction to state behaviour. It could start with a simple question around the things expected of LSK as a body established to promote rule of law. This would give us normative issues in LSK’s performance. Here, the first normative issue to clarify would be the identity of the LSK. Is it an arm of government given that it is established by statutory law, or is it a Civil Society Organisation (CSO), given that it is a membership-based organisation (MBO) promoting the welfare of its members? How does the LSK navigate this dual identity of being a state body while at the same time an MBO part of the CSO? Which of these two identities is it comfortable with, and how does it exploit the dual identity to promote its interests? 

Related to the question of identity, the other normative issue requiring clarification would be the position from which the LSK restrains the state. Is it as a vertical accountability actor or a horizontal accountability one? Does the LSK restrain the state the way Muslims for Human Rights (MUHURI) does, that is, as part of Civil Society, thus a vertical accountability actor, or does it do it as a statutory body like the Kenya National Commission on Human Rights (KNHCR), hence a horizontal accountability actor? 

An important norm in the legal profession, which would help with a greater understanding of the LSK is in the way it is organised, and how it relates with other similar bodies from elsewhere. Under this framing, the most important clarification would be whether the LSK does what other similar organisations do elsewhere. For instance, what other bar associations exist and how does the LSK relate to them? Is there something that the LSK has borrowed from older, more established bar associations, such as the English Bar Association? What has it contributed to global, continental and regional bar associations such as the Commonwealth Lawyers’ Association (CLA), the International Bar Association (IBA), the African Bar Association (ABA), the African Regional Forum of the International Bar Association (AfriBA) and the East African Lawyers Association (EALA)? And, can it compare its record to records of older bar associations such as those in West Africa and South Africa in either aiding or abetting state impunity? 

A second process that would help to clarify LSK’s role as a promoter of rule of law would be subjecting it to analytical frameworks arising out of the three dominant intellectual traditions informing knowledge production in Africa. These traditions – liberalism, Marxism and poststructuralism – would not only help trace the LSK within the larger scheme of things, but they would also help explain some of its actions using nuances provided by each of their intellectual standpoints. For instance, liberalism, along with theories arising out of it, would cast the role of the LSK as one meant to establish a liberal order, in which human rights and private enterprise are promoted. 

On the other hand, the Marxist tradition, along with theories arising out of it, would explain the work of the LSK from a class interest perspective, interpreting the actions as either meant to entrench certain class privileges or undermine them. For the poststructuralist tradition and its derivative theories, the actions of LSK can be explained as manifestations within relations of power. According to this tradition, power relations determine the condition of different entities, with powerful entities shaping the condition and actions of less powerful entities. LSK’s actions are shaped by the power, which the state wields over it, according to this tradition. 

It should be noted, however, that although LSK may wield less power compared to the state, its position in relation to the state is not that of total subservience. Instead, the state and the LSK are locked in a mutual existence in which certain compromises are made on both sides of the power equation. The poststructuralist tradition can be particularly useful in explaining LSK’s actions towards the state using the concepts of counter conduct, hybridity, ambivalence, weapons of the weak and conviviality, which the tradition supplies. 

Perhaps more important than is the question of the methodology to use in finding answers to questions of LSK’s performance in restraining the state. Granted, a search for answers in LSK history can follow the conventional path, where consulting archival records, speaking to Key Informants and reviewing existing secondary literature can somewhat suffice. However, there are serious limitations in this conventional approach. First, existing accounts on the LSK are scattered in different sources including chapters of books, articles in journals and internet sources. Apart from The Black Bar (supra), there is hardly any book length examination of the institution. The Black Bar itself is out of print, and thus not available for review. 

Secondly, there is an information bias towards the Moi and post-Moi eras, with huge data gaps for the colonial and Kenyatta eras. The two earlier eras suffer from challenges of accessing oral data, given most people who served during these eras are no longer around. Third and related to this, with so much information coming after the Kenyatta era, there is likely to be a challenge in balancing data from different periods of the LSK history under examination. 

In spite of all these challenges, however, it is possible to reconstruct the LSK history, placing it within the larger question of its contribution to rule of law in Kenya. This author intends to address some of the questions and reflections raised here in coming articles, thereby showing the contribution of the LSK to the country’s governance, particularly in the evolution of Kenya’s legal history.

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