The oath administered on advocates on enrolment obliges them to commit irrevocably to the rule of law and the administration of justice.
Without exception, all candidates for president of the Law Society of Kenya have delivered themselves of sundry effusions whose gravamen is nothing beyond the fervent asseveration of utmost fealty to the Judiciary and non-severable affiliation with the imperatives of judicial politics.
To the discerning mind, this astonishing and implicit abdication of fundamental intellectual commitments by my highly esteemed and learned colleagues is unsurprising for a couple of reasons.
The first, of course, is the utterly deluded, mistaken and untenable extrapolation of the notion that advocates are ‘officers of the court’, which is notoriously misconstrued to suggest that advocates are employees, agents or such other subordinate cadre of judicial retainers, instead of autonomous instead whose professional functions are indispensable for the effective and efficient operation of the Judiciary.
The oath administered on advocates on enrolment obliges them to commit irrevocably to the rule of law and the administration of justice, and to perform their duties as officers of the court without fear or favour.
Nowhere in the course of a lawyer's education or training, or in the preparation for admission to the bar, is it implied that their role is attached to the administrative or organisational system of the Judiciary.
Advocates are simply a specialised category of professionals with a right to appear before courts on behalf of parties. They are paid by the parties, and privately administer their practices, subject only to the Advocates Act.
Many lawyers unthinkingly interpret the ‘officer’ in ‘officer of the court' to identify themselves as employees of the Judiciary with a specific obligation to offer vociferously fanatical loyalty to it.
The definition of office encompasses physical space, to a position of authority, a service done to another or even daily prayer services performed by clergymen. It is, basically, a position of authority on which certain expectations of routine service are legitimately reposed.
An office is not only occupied - as when politicians besiege each other with locks and barricades and either eject others out of, or inject themselves into rooms in a building - it is also assumed, performed or executed.
The president, for instance, swears an oath of ‘due execution’ of his office. When we do things customarily assigned to or expected of us, we are said to perform the respective office, and this can, in humorous expression, extend to very base physiological endeavour.
It is therefore dismayingly inattentive of lawyers to decide that an officer of the court has to be a professional and ideological appendage of the Judiciary.
In case doubt remains about the veracity of this delusion, it may be remembered that from time to time, the LSK has compelled advocates to put down their tools and embark on a strike until the Judiciary attends to this or that grievance. I am on record joining those who oppose this mode of engagement and protest its abysmal stupidity, yet the LSK leadership is incurably addicted to a mode of engagement synonymous with labour unions, collective bargaining agreements and employee grievances.
In any event, it is clear that whatever the outcome of the forthcoming election, the resultant LSK leadership will faithfully perpetuate the horrendously mistaken and dreadfully delusional policy of recklessly enabling judicial impunity and trespass. It is delusional for a number of reasons.
First of all, judicial independence and judicial accountability are not mutually exclusive. No arm of government is immune to oversight, checks and balances, and none exists exclusively to check others while itself remaining unencumbered with the fundamental constitutional imperatives of accountability.
Secondly, the judicial arm of government is co-equal and independent only in principle, albeit a fine principle deserving of considered deference. Under the constitution, there is no fundamental mandate that is exclusively judicial: the interpretation of laws is the duty and right of all, and the judiciary only has authority in the event of controversy.
Laws to be interpreted are made by the Legislature under an exclusive mandate, and their execution, including of consequent judicial decrees, is exclusively vested in the Executive. The Judiciary depends on budgetary allocations made by Parliament, and both judges and members of the Judicial Service commission are appointed by the president.
Although the courts claim that the president's role is purely routine, the fact of the matter is that such functions are judicial lifeblood to the extent that they provide the essential interface for a purely appointive institution with institutions created by the people directly through election. In other words, Parliament and the Executive provide the Judiciary with the vital nexus with the people's sovereign power, whilst insulating them from the infernal crucible of democratic accountability, which is primarily political and ruthlessly adversarial.
To imagine the Judiciary as the sole custodian and primary expression of constitutionalism and the rule of law, or interpose itself between the people and their elected leaders as arbiters of policy, or suggest that it is somehow immune from accountability by dint of the separation of powers, is offensively disingenuous, for the reason that it liberally exhibits both professional redundancy and civic incompetence.
- Mr Ngéno is an Advocate of the High Court
