BY SHARU MUYESU
Talk about fancy holiday getaways, vintage handbags, or even a skin formula…
A woman has needs, immediate needs. And there is no better way to cure them than to pursue a new “social entrepreneurship” portfolio that creative liberals have conjured up, which, thus far, has demonstrated maximum benefit at minimum cost. The only problem is that, reliant on the fickle entities of a comely face and a fierce physique, such entrepreneurship doesn’t offer much in terms of a retirement plan. That the culture of disciplined saving for a “rainy” day is not an innate human characteristic makes the sole reliance on social entrepreneurship such an unreliable an occupation.
A mild joke stretched too far?
Having chosen to bear the rigours of laws school on the side (you know, for the future) and, of course, schooled in these laws of diminishing returns, soon enough one Corazon Kwamboka would also table her application for admission to the bar. Her supposed stellar grades of zero consequence, my guess is that at the behest of LSK or some concerned citizen, the Chief Justice will invoke a morality clause to veto her admission. As soon as they get wind of this, a person of her rumoured intellectual mettle ought to sprint to Court on a petition seeking everything Article 23 has to offer – a stay of the CJ’s orders, an order of compensation and a declaration of rights… name it.
But not sure she is one, my thinking is that perhaps satisfied with the substantial reaps of her current exploits, a lack of interest or better yet ignorance, she’ll probably stall – and she should!
Hers makes a very curious case on several fronts. Foremost, her “immorality” does not constitute a seamless fit into the professional misconduct definition of Section 60 of the Advocates Act, and Part C of the Code of Ethics and Conduct for Advocates; neither does it constitute a direct shortcoming on the moral fitness meditated by Section 15.
Fickle premises
Actually, the said sections do not offer any proper definition for professional misconduct or moral fitness, yet it’s only upon these grounds that any pre- disqualification could have been premised. Secondly, denial of an admission to the bar on moral grounds, while meditated under Section 15, is actually quite rare – at least as far as Kenya goes. Internationally, where admission or even disbarment has been contested, it has always been on matters other than supposed “loose morals”
The general norm has, for long, been that a professional will be disciplined when they flout professional guidelines i.e. in the line of duty, within lawyer-client interactions. For a long time, the law didn’t put much care in personal preferences and habits. In “Shapero v. Kentucky Bar Association” O’Connor J. observes:
“One distinguishing feature of any profession, unlike other occupations that may be equally respectable, is that membership entails an ethical obligation to temper one’s selfish pursuit of economic success by adhering to standards of conduct that cannot be enforced by legal fiat or through the discipline of the market. There are sound reasons to continue pursuing the goal that is implicit in the traditional view of professional life. Both special privileges incident to membership in the profession and the advantages those privileges give in the necessary task of earning a living are means to a goal that transcends the accumulation of wealth…”
Where the law has extended the boundaries of professional circles such as in “Prince v. Law Society of Cape” it has, regrettably, failed to interrogate the question of shifting societal morality, and hence use it a gauge of what constitutes professional misconduct. More times than one, courts have assumed a positivist approach by unwittingly defining what is moral to be what is legal, and what is illegal to be immoral. Consequently, an act of professional misconduct has often been an illegal act, not an immoral one! In Prince, the constitutional court of South Africa denied the applicant, a Rastafarian and a self confessed avid user of the banned cannabis, registration for his articles as an attorney as he, even after admission as an advocate, would continue breaking the law whilst bringing the profession into disrepute with his behaviour.
The interpretation of Prince is that an advocate can practice adultery of the highest contemplatable extent, even “twerk” in clubs as bonus, without qualifying for disbarment or other disciplinary proceedings as she would if she touted, undercut or “smoked a blunt at home”. A violation of the dictates of the LSK Dress Code of 2013 falls in the same category as the aforementioned wrongs of undercutting, touting and many more highlighted under the Advocates Act. It qualifies as a professional misconduct even a moral flout, not because it’s morally wrong in the strict sense of “morality”, but rather because it’s a breach of codified law – an illegality!
That said, while there is no such thing as “my dress my choice” for an advocate (even a lawyer), this caveat only extends to courtroom appearances or when making a chamber application before a judge or magistrate. Outside court, however, when the veil of wakili is dropped, our madam is free to resume her preferred “tight and skimpy”. The same goes for dreadlocks and other elaborate hairstyles, footwear, jewellery and ear pieces.
Professional misconduct?
Unfortunately for her, the law on professional misconduct is not cast in stone. The latent ambiguity of the definition of moral or professional misconduct, even the discretion that the Advocates Act places on the CJ to veto any requests of admissions, means that what is moral or what amounts to professional misconduct is the discretion of the admitting authority (and the courts). It’s on this confusion that Corazon, if she was as stellar as whispered, ought to have sprinted to court!
Perhaps she is bidding her time.
That she publicly practiced and enjoyed the fruits of her trade, that she enjoys an alarming notoriety of expertise in a trade that the lay public considers a locus classicus for prostitution, however, presents a very serious stumbling block to any argument she might want to put across in her defence. For the public, a night nurse? Practicing advocacy? Now that is enough to throw a profession into disrepute – enough to warrant non-admission!
The need to protect public honour is betrayed under Section 20 of the LSK Code of Conduct and Ethics for Advocates which states in part:
Flouted code
“…Advocates should expose without fear or favour before the proper tribunals corrupt or dishonest conduct in the profession, and should accept without hesitation employment against a member of the Bar who has wronged his client. The counsel upon the trial of a cause in which perjury has been committed owes it to the profession and to the public to bring the matter to the knowledge of the prosecuting authorities. The advocate should aid in guarding the Bar against the admission to the profession of candidates who are unsuitable by reason of their moral character or insufficient qualification… should strive at all times not only to uphold the honour and maintain the dignity of the profession but also to improve the law and the administration of justice…”
More specifically for our madam, the latter Section 29 holds: “No Advocate may practice as an advocate and be engaged in any trade or business which the council may declare to be incompatible with practice as an advocate or tending to undermine the high-standing of the profession”.
The code also emphasises “responsible use of social media”. Following the saying “Mchovya asali…”, I’m not sure madam would be willing to give up Instagram, “attending events” and “modelling” for the boring, not so well paying rigours of a court room, or give up trips to Dubai and Barbados for the Kibera Law Courts.
On the same topic, Noel Cox in “The Enforcement of Professional Ethics and Standards in the Kenyan Legal Profession”, Paragraph 40 notes:
“Consequently, to perform the said functions in the spirit of public service, a high ethical and professional standard must be maintained within the rank and file of the profession, the lawyer must consequently amongst other things, be of high integrity, probity, honesty and competent, like in any other profession members of the legal profession must shun those things “which are likely to bring the profession into disrepute…members of the law society belong to a profession – a privilege traditionally reserved for medicine and clergy”
Hopefully, she does proceed to court because the court’s ruling on this one would make an interesting debate. Actually, if we are to be guided by Prince (supra) she could just win her admission as long as she denounces her lifestyle thus far and undertakes to lead a reformed and dignified legal practice. Any other outcome and we might as well name a popular nightspot after her.
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