Mandatory membership: addressing LSK’s stranglehold on advocates

By EUNICE NG’ANG’A

A judge sits dauntingly at his raised bench, in this sobering, almost foreboding high walled Court room, looking down on the mere mortals beneath. A crest fallen prisoner, hands cuffed and feet shackled walks in, a biblical grasshopper in the sight of the establishment that imprisoned him under unjust laws. It is a David versus Goliath situation: He has pebbles-provisions of law that declare he should never have been imprisoned in the first place, requiring his immediate release. His adversaries have the proverbial horses and chariots-the entire armoury of the establishment, keen to sustain the pressure on their stranglehold. Such is the situation of Kenya’s advocate. 

To obtain or to renew a practising certificate, Section 22 of the Advocates Act requires an advocate to produce evidence of payment to the Law Society of Kenya of the fees payable being the consideration for such practicing certificate; annual subscriptions and fees for membership to the Advocates Benevolent Association (The Society has since added building levy, Devolution and Regional Integration Levy and ID card fees). 

Section 23 of the Advocates Act and Section seven of the LSK Act meanwhile make advocates automatic members of the Society and members of the Advocates Benevolent Association, contrary to Article 36 (2) which provides that a person shall not be compelled to join an association of any kind. 

Rules 10 & 11 of the Advocates (Continuing Professional Development) Rules 2014 require an advocate to pay and attend at least five training seminars per year, contrary to Article 33 of the Constitution which guarantees every person the freedom to seek, receive or impart information or ideas, academic freedom and freedom of scientific research.

Further, since these requirements only apply to advocates working in the private sector, it is urged that they discriminate upon members of the profession contrary to Article 27 of the Constitution which guarantees freedom from discrimination, full and
equal enjoyment of all rights and fundamental freedoms. 

Justifications for mandatory membership

The arguments advanced for continued mandatory membership to the LSK include the need to maintain status quo; comparative customs; voluntary surrender of rights; rights are not absolute; the crucial role of the LSK; the statutory nature of LSK and the unfeasibility of regulating advocates without mandatory membership. 

Doctors and journalists perform equally crucial roles in the society as advocates. Yet, they are regulated without being compelled to belong to an association

Status quo should be maintained to avoid administrative chaos

This proposition cannot stand as the LSK no longer serves the purpose for which it was established. Should the offending provisions be declared unconstitutional, administrative chaos can be cured and a smooth transition effected by providing a sufficient transitional period.

Comparative Practice: Others have mandatory membership too 

This assertion is naïve because a society striving to progress towards effecting human rights should not compare itself with those who fall short in upholding human rights. Instead, it should compare with those advocating for advancement of human rights enjoyment.

Advocates voluntarily surrender their fundamental rights 

Article 24 of the Constitution of Kenya is very clear on the professions which to join would be akin to surrendering certain rights due to their nature and crucial role they play. Law isn’t one of them. In SDV Transami Kenya Limited & 19 others v Attorney General & 3 other Constitutional Petition No 76 of 2012, it was held that freedomof association under Article 36 of the Constitution was infringed where one is obliged to join an association. Further, the court held that Constitutional rights could not be waived or infringed by acquiescence of the right holder or his consent with the State or any other person.

Rights are not absolute

It is not contested that the only absolute rights are those under Article 25. However, limitation of rights is only permissible under Article 24 (1) and the limiting legislation must meet the threshold set under Article 24 (2). The offending provisions cited in this case do not meet these criteria.

The ‘crucial’ role of the LSK

This is a moot proposition. The new Constitution established independent Commissions and offices and opened up democratic space for civil societies to thrive for the same objectives found under Section four of the LSK Act. They include the Judicial Service Commission, Commission on Administrative Justice, the office of the Attorney General, the office of the Director of Public Prosecutions, the Kenya National Commission on Human Rights, the Kenya Law Reform Commission, the International Commission of Jurists, the Council for Legal Education, the Law Society, Judicial Training Institute, Katiba Institute and Okiya Omtatah. Therefore, even in complete absence of the LSK, all the objects listed in Section four would still be achieved. 

LSK is a statutory body justified to compel membership

By using the words ‘association of any kind’ in Article 36, the drafters could not have intended that the definition exempts a statutory body. If that were the case, all it would take to compel membership to any association would be to establish it as a statutory body.

Impossible to regulate advocates without mandatory membership

Doctors and journalists perform equally crucial roles in the society as advocates. Yet, they are regulated without being compelled to belong to an association. Furthermore, regulation of the legal profession is being done in other jurisdictions without the requirement of mandatory membership to an association. Examples include Australia, India and some States in the USA. Regulating advocates without mandatory membership to an association is not novel or untenable.

The case for voluntary membership

Proponents of voluntary membership to the LSK rely on the supremacy of the Constitution, inviolability of Constitutional rights, Constitutional threshold for limiting a right, interpretation of the Constitution in a manner that advances human rights, the insignificant role of the LSK and the prohibitive fees levied by the LSK.

Article two of the Constitution declares the Constitution as the supreme law of the land, binding all state and non-state organs whilst voiding any law inconsistent with it.  Articles three and 21 of obligate every person to respect, uphold and defend the Constitution. The provisions limiting advocates’ rights cannot stand in light of the supremacy of the Constitution.

Inviolability of Rights

In Attorney General V Kituo Cha Sheria & 7 others [2017] eKLR , Court restated the provisions of Article 19 of the Constitution which provides that rights and fundamental freedoms are not granted by the State; that they can only be limited as per the Constitution. Article 20 (2) provides that every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom. Advocates rights are equally inviolable and can only be limited as per Article 24(2).

By dint of Article 24(1), limitations may only be by law and they must be reasonable and justifiable taking into account all relevant factors, including the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose. 

A law seeking limitation must meet the threshold in Article 24 (2): It must specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation; be clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and should not derogate from the right’s core or essential content. This was restated in Muwang Kivumbi vs Attorney General (Constitutional Petition No. 9 of 2005.

Clearly, Sections 22 and 23 of the Advocates Act, Section seven (1) of the Law Society of Kenya Act 2014, and Rules 10 and 11 of the Advocates (CPD) Regulations, 2014 do not meet the threshold set by Article 24 (2) of the Constitution.

Articles 20(3) & (4) and 259 provide that a Court shall adopt the interpretation that most favours the enforcement of a right or fundamental freedom and advances human rights and fundamental freedoms respectively. The Court is thus enjoined to interpret the Constitution in a manner that accords advocates voluntary membership to LSK. 

Prohibitive levies 

LSK collects levies for mandatory membership to the Advocates Benevolent Association, Devolution and Regional Integration Levy, Building levy, library, charges for Continuing Professional Development programs among others. These exorbitant charges are an affront to advocates’ economic, property and dignity rights guaranteed under Articles 28, 40 and 43of the Constitution. They are also discriminative contrary to Article 27,as they apply only to advocates in the private sector.

In sum, can advocates be regulated without mandatory membership? Doctors and journalists in Kenya are regulated without being compelled to belong to an association. In its advisoryOpinion Number Oc-5/85 of November 13, 1985, Compulsory Membership In An Association Prescribed By Law For The Practice Of Journalism the Inter-American Court Of Human Rights held that compellingjournalists to belong to the Associationof Journalists of Costa Rica, a public corporation whose aims could be accomplished by associations established under freedom of association, created impermissible restrictions under
Article 16 of the Convention and was thus incompatible with it. 

It is therefore possible to regulate advocates without requiring them to belong to any association. ( 

— Author is an advocate of the High Court