Monday, May 30, 2011

Don't hate the lawyer, hate his client

The State Law Office is the largest law firm in Kenya, and Wanjuki Muchemi is the busiest managing partner (Solicitor-General). The role of the of the Attorney-General under the former Constitution has come in for a lot of flak, especially given that the tenure of Amos Wako seems interminable, having survived the implosion of the Moi presidency and almost the Kibaki one too. If it was not for the transitional clauses in the new Constitution, Amos Wako could have retired as Attorney-General, having extended his term at the State Law Office longer than all his predecessors combined.

The manner in which the A-G has been mentioned in public, including by international interlocutors, has been very unflattering. The A-G has somehow managed to keep smiling through it all, refusing to break the oath of confidentiality between him and his principle client, the Government of Kenya. If he had been an advocate in private practice, his professional colleagues would not be calling for him to reveal the content of his communication with his client, let alone publish it for all and sundry to read. It is one of the most basic lessons that green law students are taught at university, reinforced during pupillage and doubly emphasised when one is called to the Bar.

The A-G has borne all the ill-will directed at him with exceptional goodwill. His detractors, for the most part, have never met the man and have never appreciated the circumscribed manner in which his authority was exercised. It is in the realm of public prosecutions through, initially, the Director of Public Prosecutions, and now recently, the Chief Public Prosecutor, that the A-G has gained especial notoriety. When he has entered applications for the withdrawal from prosecutions, sometimes he has been accused of shielding well-connected persons, or having an interest in the non-prosecution of certain members of society. In the manner in which he has advised government regarding various transactions, his opinions have been received by his detractors with much-ballyhooed anger and promises of enquiries into the conduct of the A-G himself.

Many refuse to accept that while the A-G is no ordinary lawyer and the government is no ordinary client, until the foundational principles of the practice of law are reviewed, the A-G, even under the new Constitutional dispensation, is still limited to offering his client the best possible advice. Whether the client chooses to heed the advise is up to him. When the government is sued for one reason or another, it is the responsibility of the A-G to defend his client, regardless of his personal or moral feelings of the defense. It is the same position that Dr Gibson Kamau Kuria took during the Kiruki Commission into the activities of the Artur Brothers, arguing that if the Devil had been accused and had retained his services, he would defend his interests before such a Commission. 

The Chairman of the Law Society, the Chairman of the Advocates Commission, and the Chairman of of the Advocates Disciplinary Commission, and indeed the one of the Kenya Law Reform Commission, will all agree that from a professional point of view, Amos Wako has conducted himself to the highest standards of the profession. If his clients were determined to pillage and loot the Exchequer, the A-G did not have the luxury of whistle-blowing like the former employee of the Central Bank who disclosed the Goldenberg Scam. He could only advise his principle client of the correct legal position, and defend his interests as and when they were under attack.

The animus with which Article 156 and section 31 of the Transitional Clauses were drafted betrays the fact that even with an impressive Constitution, Kenyans are still not confident enough about themselves or their public institutions. This recognition tracks with the general mood of Kenyans, one fostered by poor political leadership and a general decay ion many non-governmental institutions, including schools and faith-based organisations. The desire to lay the blame squarely on the shoulders of one man is so strong that few are willing to examine the fats and arrive at correct assessments of circumstances that led Mr Wako to serve as long as he has. 

If Mr Wako had demonstrated the same political ambitions that Charles Njonjo did, his career would have been very short. Let us see if the wishes of the Anti-Wako lobby will be satisfied with the appointment of an A-G after August 27, 2011. But be warned, the person's tenure now is less secure and his powers reduced, but his influence shall still be all-pervasive.

No comments:

Some bosses lead, some bosses blame

Bosses make great CX a central part of strategy and mission. Bosses set standards at the top of organizations. Bosses recruit, train, and de...