KENYA SCHOOL OF LAW

ADVOCATES TRAINING PROGRAMME 2024/2025

ATP 105 – PROFESSIONAL ETHICS
………………………………………………………………………………………………………

FIRM 13: PRESENTATION

LECTURER: MS. ANNAH KONUCHE

FIRM: 13

MEMBERS:
1. IVY GISORE - 20240665
2. KERRY ODHIAMBO AWINO - 20240731
3. TERESIAH NJERI KARICU - 20241476
4. NYANGAU MORDECAI NYABIOMA – 20241572
5. SHIRLEY SIAN LEPONYO - 20241363
6. OUNOI IAN EMORUT - 20241370
7. LAURYNE MUINDI - 20241467
8. MERCYLINE KWAMBOKA – 20241743
9. DAVIS THURANIRA – 20240943

SUBMISSION DATE:
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 THE ROLE OF A LAWYER IN THE SOCIETY

INTRODUCTION

"I cannot believe that a republic could subsist at the present time if the influence of lawyers in
public business did not increase in proportion to the power of the people."

-de Tocqueville (1831)1

In his age-old discussion on the legal profession, Tocqueville captures the significance of the
position which the legal profession occupies in the society. He observes that when a prince
entrusts to lawyers “a despotism taking its shape from violence, he receives it back from their
hands with features of justice and law.” Based on global and Kenyan history, an independent bar
has been instrumental in the development of progressive societies as it serves in opposition to
arbitrary use of power.

The role of an advocate in the society is a widely-discussed topic but still greatly misconstrued,
owing to the subjective perceptions on lawyers and expectations that members of the public and
clients have. It is therefore important to base any discussion on the role of a lawyer in the society
on the functions of law in the same society. Legal philosophers contend that the need for law
arises from the inevitability of human conflict. Such conflicts can be partially attributed to the
limited supply of goods which makes it impossible to satisfy all human beings. In order to
govern the course of such conflicts and struggles, laws are established to ensure that the pursuits
of one person do not cause injustice upon others. Being the professionals tasked with most legal
work, lawyers inevitably find themselves being called upon to preside over or arbitrate in
disputes between adversaries.2

Evolution has made the modern society more complex thus adding more burden on the lawyer.
Professor PLO Lumumba attributes this increased pressure to the tendency of societal
interactions to create new relations that demand regulation. In response, the law establishes and
protects society by setting the standards of conduct, the corresponding duties, and the

1
Patrick Flavin, ‘American Democracy: From Tocqueville to Town Halls to Twitter, 2014. 248’ (2015) 130
Political Science Quarterly 170
2
Charles V Laughlin, ‘The Place and Function of the Lawyer in Society’ (1951) 8 Washington and Lee Law Review
<https://heinonline.org/HOL/LandingPage?handle=hein.journals/waslee8&div=6&id=&page=>accessed 22 March
2024.
consequences for breach of those duties and standards by either individuals or institutions or
both. The interaction between individual members of society within the framework of standards
and duties generates a list of expectations. Consequently, the legal profession must service the
three correlatives of standards, duties and justice. According to Prof Lumumba, it is these three
values which place lawyers on a pedestal and public scrutiny.3

It cannot be gainsaid that although philosophical schools have had great impact on the
understanding of the role of lawyers, those roles have remained slightly changed over time.
According to renowned legal philosopher Lon Fuller, law is not merely a body of statutes or
doctrines but the activity of lawyers as “architects of social structure.” These activities of
lawyers are said to enhance human dignity as they make it possible for members of the society to
conduct their ordinary business in an orderly and harmonious manner. On the other side, legal
positivists are quick to dismiss the existence of any serious connection between legality and
morality as they argue even brutal and oppressive laws are also valid.

The legal profession plays an indispensable role in the society. Although the place of the
profession as an aggregate is slightly different from that of the individual lawyer as in some
instances the latter gets partisan, the roles of the lawyer cannot be sufficiently construed outside
their professional responsibility. According to Section 4 of the Law Society of Kenya Act, one
key object of the LSK which touches on individual lawyers include; to protect and assist the
public in Kenya in all matters touching, ancillary or incidental to the law. This statutory
provision expressly demonstrates the special role of lawyers in the administration of justice and
the promotion of the rule of law.

THE ROLE OF LAWYERS IN THE ADMINISTRATION OF JUSTICE

In Roman mythology, justice is depicted as a goddess wearing a blindfold and holding scales.
These scales symbolize the weighing and balancing of rights and privileges. There has been an
unending debate about the justiciability of socio-economic rights but with their incorporation
into the Constitution of Kenya 2010, these rights have been moved from the side of privileges to
that of rights. This has increased the responsibility of lawyers in the administration of justice as
they are required to use advocacy and integrity to help judges keep the scales of justice in

3
Ghai, YP & Others, "The legal profession and the new constitutional order in Kenya" (2014)
equilibrium. Article 12 of the United Nations Basic Principles on the Role of Lawyers requires
lawyers to maintain the honour and dignity of their profession as essential agents of the
administration of justice.4

Some of the specific roles of lawyers in the administration of justice towards their clients include
advising clients as to their legal rights and obligations and as to the working of the legal system,
assisting clients in every appropriate way, and taking legal action to protect their interests. They
also assist clients before courts, tribunals or administrative authorities, where appropriate. 5 In
addition, lawyers are not only required to protect the rights of their clients but also promote the
cause of justice by seeking to uphold human rights and fundamental freedoms. In all these
responsibilities, lawyers are expected to act freely and diligently in accordance with the law and
recognized standards and ethics of the legal profession.

The role of lawyers in the administration of justice is not limited to their professional duties but
an overarching responsibility owing to their position in the society. Since time immemorial,
lawyers have been understood to have heavier responsibilities than those of ordinary private
citizens. History has it that owing to the restrictions that the law imposes upon the society, public
dissatisfaction with lawyers has prevailed. This can be blamed for the misconception of the
lawyers’ role in society, the thin line between law and public administration as well as the few
individual lawyers who defy professional standards thus exposing the entire group to ridicule and
disdain. Nonetheless, a lawyer retains their responsibility to avoid eroding or undermining public
confidence in the institutions of justice by unethical or illegal conduct.

Any lawyer who voluntarily joins the profession takes an oath to affirm their commitment to
facilitate the administration of justice by acting in accordance with the law. This places them on
a position where they are required to promote equality and the impartial administration of justice.
To achieve this responsibility well, lawyers in progressive jurisdictions are allowed to fair
criticism on court decisions in order to keep the judiciary in check and contribute to the growth
of jurisprudence. First, a lawyer should avoid criticism that is petty, intemperate or unsupported
by a bona fide belief in its real merit, since, in the eyes of the public, professional knowledge
lends weight to the lawyer’s judgments or criticism. Second, if a lawyer has been involved in the

4
Ibid (n 3)
5
United Nations Basic Principles on the Role of Lawyers, Article 13
proceedings, there is the risk that any criticism may be, or may appear to be, partisan rather than
objective. Third, when a tribunal is the object of unjust criticism, a lawyer, as a participant in the
administration of justice, is uniquely able to, and should, support the tribunal, both because its
members cannot defend themselves and because, in doing so, the lawyer contributes to greater
public understanding of, and therefore respect for, the legal system.

Besides their advocacy roles, lawyers also play advance the interests of the legal system by
promoting access to justice. Article 48 of the Constitution 6 guarantees every person the right of
access to justice. Considering the professional monopoly of lawyers as advocates in courts and
tribunals, they are expected to provide pro bono services, represent marginalized communities,
and advocate for legal reforms aimed at improving the fairness and inclusivity of the legal
system.

Based from Lon Fuller’s caricature of lawyers acting as architects of social structure, it would
certainly mean that lawyers do not only focus on the public but also the private sphere which
also needs effective administration of justice. Therefore, by drafting contracts, incorporating
businesses and writing by-laws for organizations, lawyers promote the growth of corporations
and the civil society which is a necessary player in the advancement of social justice.

The role of lawyers in the administration of justice was examined by the High Court in the case
of Republic v. KLR Ex Parte S O Onyango, while underscoring the importance of legal
representation and access to justice. The petitioner, S O Onyango, sought an order compelling
the Kenya Law Reports (KLR) to provide him with certified copies of certain judgments and
rulings. Onyango argued that access to these legal documents was crucial for him to effectively
represent his clients and participate in legal proceedings. The court, in its decision, pointed out
that lawyers serve as agents of justice and play a critical role in ensuring that individuals have
access to legal information and representation. The court also observed that denying lawyers
access to essential legal documents would impede their ability to discharge their duties
effectively and could undermine the administration of justice.

Since the Advocate partners with the Court to ensure the scales of justice attain the desired
equilibrium, it is prudent for the two stakeholders to work together in the administration of

6
Constitution of Kenya 2010
justice. In the above-mentioned case, the Court reaffirmed the fact that legal professionals are
integral to the proper functioning of the justice system by supporting the Advocate in his quest to
access the information necessary to pursue the Client’s cause. Additionally, the decision
demonstrated the obvious fact that lawyers cannot succeed in their roles except with the
cooperation of other institutions like the Kenya Law Reports.

The justification of advocacy is to be found in the fact that the recognition and interpretation of
the law applicable to any particular dispute may be difficult and influenced by many
considerations. There is no judge or magistrate, however learned, conscientious, and industrious,
can discover everything to be weighed in the scales of justice, and might therefore overlook
items of vital importance. With Advocates on both sides the merits of the controversy should be
fully exhausted. This supports the quote by an unknown author that, "Through the friction of
minds comes the scintillation of truth."

In their advocacy roles, lawyers are expected to maintain some considerable level of moral
accountability for their actions as they may harm others and undermine the administration of
justice if careless. Renowned legal ethicist David Luban expresses this concern in a
philosophical way by stating that;

“Moral accountability is not something we can put on and take off like a barrister’s wig. If a
lawyer acting on a client’s behalf ruins innocent people, can she really excuse herself by saying,
“It’s not my doing, it’s my client’s doing” or “It’s the law’s doing”? Excuses like these sound
like a hit man’s rationalizations.7”

Despite their responsibilities to ensure that the client’s goal is pursued through morally justified
means, lawyers are not responsible for the morality or otherwise of their clients. This gives rise
to the rule that lawyers should not discriminate against their clients because doing so would
amount to injustice and unfairness. In a much broader sense, the lawyer usurps the functions of
the judge or magistrate when he/she refuses to represent a client because they believe that the
case is indefensible or unjust. The lawyer is not supposed to judge the Client because the
morality of the client is not relevant to the morality of the representation.8

7
Luban D, ‘ Lawyers and justice: An Ethical Study ( Princeton University Press, 1988)
8
Sharwood, ‘Legal Ethics’ (1854)
The discussion arises on the zealous advocate, who defends the client within the established
constraints upon professional behaviour, and the overzealous advocate who acts as a hired gun.
For the latter, their loyalty to the client instead of fidelity to the law pushes them to do
everything possible to advance their clients’ interests, regardless of the collateral damage the
lawyer inflicts on innocent persons and the society. One such example can be drawn from Lord
Henry Brougham’s 1821 Defence of Queen Caroline against King George IV’s charge of
adultery in 1821 when he stated that;

“An advocate, in the discharge of his duty, knows but one person in all the world, and that
person is his client. To save that client by all means and expedients, and at all hazards and costs
to other persons, and, amongst them, to himself, is his first and only duty; and in performing this
duty he must not regard the alarm, the torments, the destruction which he may bring upon
others. Separating the duty of a patriot from that of an advocate, he must go on reckless of
consequences, though it should be his unhappy fate to involve his country in confusion.”

The quote by Lord Brougham had been long considered as the most eloquent explanation of the
lawyer’s role in advocacy save that it only captures the general view without having regard to the
duty to the court, profession and the society in general. This is because Advocates operate within
a legal framework whose main interest is the preservation of justice. In addition, the operations
of advocates are governed by the Advocates Act and other written laws and regulations. Indeed,
Lord Chief Justice Cockburn contrasted the role of the Advocate from Lord Brougham’s position
by observing that the Advocate should demonstrate zealous advocacy by taking all necessary
steps within his/her capacity in a manner that promotes justice. The Learned Judge stated that the
Advocate should;

“…to the utmost of his power to seek to reconcile the interests he is bound to maintain and the
duty it is incumbent on him to discharge with the eternal and immutable interests of truth and
justice.”

By making the Advocate’s duty to the court the dominant duty, the legal system ensures that
advocates maintain their fidelity to the law and pursue client’s matters within the prescribed
limitations of legal and professional conduct. The landmark quote by Lord Denning in the case
of Rondel v Worsley9, emphasizes that the Advocate is not the mouthpiece of the client has
he/she has a greater responsibility as an officer of the court and in the administration of justice.
In the afore-mentioned decision, the Lord Denning provided a comprehensive analysis of the
conflict between the duty of an Advocate to give his client zealous advocacy and representation
and the Advocate’s duty to the Court. He stated that;

“The advocate has a duty to the court which is paramount. It is a mistake to suppose that he is
the mouthpiece of his client to say what he wants: or his tool to do what he directs. He is none of
these things. He owes allegiance to a higher cause. It is the cause of truth and justice. He must
not consciously misstate the facts. He must not knowingly conceal the truth. He must produce all
the relevant authorities, even those that are against him. He must see that his client discloses, if
ordered, the relevant documents, even those that are fatal to his case. He must disregard the
most specific instructions of his client, if they conflict with his duty to the court. The code which
requires a barrister to do all this is not a code of law. It is a code of honour. If he breaks it, he is
offending against the rules of the profession and is subject to its discipline.”

In the same case, Lord Reid introduced asserted the role of an Advocate to the profession besides
the court and the client by stating that an advocate has “an overriding duty to the court, to the
standards of his profession, and to the public which may, and often does, lead to a conflict with
his client’s wishes or with what the client thinks are his personal interests.10”

Whether working in the Office of the Director of Public Prosecutions or the Office of the
Attorney General or any other institution, lawyers have the responsibility to promote the
administration of justice. Article 157 of the Constitution seeks to respond to an historic culture of
abuse of prosecutorial discretion in Kenya by establishing an independent ODPP. The office is
designed with complete autonomy and independence but Article 157(11) states that in the
performance of their functions, the DPP shall “have regard to the public interest, the interests of
the administration of justice and the need to prevent and avoid abuse of the legal process

Lawyers also have a role to promote the development of jurisprudence through legal research,
analysis and debate. After gaining independence, Kenya lifted the content of the laws enacted by
the colonial government into its laws. Based on this reason and Kenya’s dark history of a
9
Rondel v Worsley [1966] 3 W.L.R. 950 (Eng. C.A.) at 962-63
10
Ibid (n 9)
captured judiciary, interpretation of the law only resulted to what former Chief Justice Willy
Mutunga refers to as mechanical jurisprudence, which lacked the capacity to respond
appropriately to existing and emerging problems. This promoted the over-glorification of judicial
restraint and conservatism even when a progressive approach was required to protect citizens
against bad governance.11 According to Mutunga, the principles of the new Constitution impose a
greater intellectual burden to both lawyers and judges as they are required to commit to an
endless scholarly inquiry on the interpretation and applicability of the constitution in a bid to
realize its purposes.

THE ROLE OF A LAWYER IN MENTORSHIP

The legal profession was traditionally characterized with apprenticeship method of training,
where upcoming lawyers would learn by observing the practice of an accomplished practitioner.
Therefore, mentorship remains a top role of a lawyer in the society. 12 Mentorship plays a crucial
role in shaping the competence, ethics, and professionalism of young lawyers. Generally,
mentorship can be described as a supportive relationship where an experienced lawyer/advocate
uses their greater knowledge and understanding of the law to offer guidance to younger
professionals.13

With the ever rising number of law graduates and pupils, there is need to improve access to
mentors in a bid to ensure that the future of the legal profession is in safe hands. The
responsibility to create mentorship opportunities falls on senior advocates and the Law Society
of Kenya as an institution. In Kenya, where there exists a notable gap between the experience in
learning institutions and legal practice thus necessitating the creation of mentorship opportunities
where future lawyers can train through apprenticeship. Senior counsels have rightly pointed out
that young lawyers often struggle with finding their professional bearings upon joining the bar,
and mentorship programs aim to address this challenge by offering guidance and support.14

One of the fundamental aspects of mentorship is its contribution to upholding integrity within the
legal profession. As seen in the case of Republic v Ahmad Abolfathi Mohammed & another

11
Ghai, YP & Others, "The legal profession and the new constitutional order in Kenya" (2014)
12
Ibid (n 11 above)
13
Reporter, S. (2021, August 3). Maraga, Mutunga key speakers at Lawyers’ Mentorship Scheme. The Star.
https://www.the-star.co.ke/news/2021-08-03-maraga-mutunga-key-speakers-at-lawyers-mentorship-scheme/
14
Ibid (n 13 above)
(2019) eKLR, the Supreme Court emphasized the obligation of advocates to adhere to
professionalism and integrity. Integrity, therefore, becomes a central theme in mentorship, with
experienced lawyers imparting not only legal knowledge but also ethical principles to their
mentees. By instilling a strong sense of integrity, mentors help young lawyers navigate complex
legal scenarios with honesty and accountability, thereby fostering public trust in the legal system.

Furthermore, mentorship programs play a significant role in training the new or future generation
of advocates to anchor their practice in the desire to promote justice, equality and promote the
rule of law. As a result, mentorship underscores the importance of ethics, constitutional values
and principles enshrined under Article 10 of the Constitution of Kenya in legal practice. Some of
the other values and principles which lawyers can adopt through mentorship and are essential
owing to the nature of their work are good governance, including integrity, transparency, and
accountability. Mentorship serves as a practical manifestation of these constitutional values by
promoting ethical conduct and professionalism among legal practitioners. By adhering to these
values, mentees contribute to the realization of a just and equitable society envisioned by the
Constitution.

The recent initiative launched by the Judiciary in partnership with the Law Society of Kenya

(LSK), known as the Young Advocates Mentorship Program shows the determined efforts to
address the challenges faced by young lawyers. This program, designed to equip advocates with
advanced skills, underscores the importance of mentorship in nurturing the next generation of
legal practitioners. Chief Justice Martha Koome's emphasis on pro bono work as part of the
program highlights the commitment to social justice and public service, instilling in young
lawyers a sense of duty towards marginalized communities.15

Moreover, the mentorship program seeks to address practical concerns such as job competition
and poor remuneration, providing young advocates with the necessary support to navigate these
challenges. By leveraging the expertise of senior counsel, the program not only imparts legal
knowledge but also fosters a culture of mentorship within the legal profession. As highlighted by

15
Selestine Nyongesa, By, & Nyongesa, S. (2023, April 18). Selestine Nyongesa. Signs TV.
https://signstv.co.ke/lsk-judiciary-launch-young-advocate-mentorship-program/
the then President of the Law Society of Kenya, Eric Theuri, the efficiency of the judiciary relies
heavily on the competency of the bar, emphasizing the significance of investing in the
development of young legal practitioners.

In a nutshell, mentorship emerges as a vital mechanism for enhancing the performance and
professionalism of young lawyers. By upholding integrity, promoting constitutional values, and
addressing practical challenges, mentorship programs contribute to the advancement of the legal
profession and the realization of justice in society. As echoed by Chief Justice Martha Koome,
investment in mentorship represents a commitment to social justice and the cultivation of future
legal leaders. Lawyers who are more experienced and qualified must take up the challenge to
mentor and lead their colleagues. They need to find ways to expand opportunities in legal
training through legal aid, legal clinics, moot court competitions, debates and other activities.

THE ROLE OF A LAWYER IN PUBLIC AWARENESS

Lawyers pride themselves of having specialized knowledge on the nature and application of the
law to the exclusion of most members of the general public. Lawyers are considered as important
professionals not only for access to institutions of power and justice but also in their role in
regulating human and commercial relations. Lon Fuller refers to them as ‘the architects of the
social structure.’ They are social engineers according.

The unique place of lawyers in the society obligates them to create legal awareness through
various means including public legal education. It entails empowering individuals concerning
matters related to the law. Enhancing legal awareness fosters an understanding of legal norms,
active engagement in the legislative process, and adherence to legal principles. 16 Legal awareness
is essential because a significant barrier to accessing justice stems from insufficient legal
education and awareness, compounded by the belief that legal knowledge is exclusive to
lawyers. Therefore, legal awareness aims to improve public understanding of the law, thereby
reducing societal conflicts and disputes.

16
‘Creation of Legal Awareness | National Legal Aid Service’ (Nlas.go.ke21 March 2024)
<https://nlas.go.ke/creation-legal awareness#:~:text=Legal%20awareness%20through%20public%20legal,and
%20the%20rule%20of%20law.> accessed 23 March 2024.
So, what is the case for public awareness through legal aid? Chiuri Ngugi starts by appreciating
that the law rules over us, even without our consent. 17 He further states that most laws governing
us were passed down from colonialists. This makes most of them non-applicable in a third-world
state, which is our country. He also states that the law is drafted in English, and the court
proceedings are in English, making it even harder for most citizens to understand. He reiterates
that the current legal system in Kenya creates significant obstacles for the poor and
disadvantaged when it comes to accessing justice because most people in these groups cannot
afford lawyers. Equal access to justice is considered a fundamental right, but economic
differences prevent many from exercising their rights effectively. The complexity of legal
procedures, such as understanding different types of law and court processes, and the high costs
involved, make it even more challenging for ordinary Kenyans. Consequently, the idea of justice
for everyone remains distant, raising doubts about whether true justice exists in a system that
excludes so many.18

So, in an effort to clean the streams of justice, Ngugi calls for the need for legal awareness
through legal aid. In definition, legal aid is an organized effort to:

“…provide the services of lawyers free, or for a token charge to persons who cannot afford to
pay an attorney's fee... Such services may involve no more than a professional consultation, or
they may include assistance in negotiation, the preparation of documents, or representation in
court. The term "Legal aid" applies if they are supplied through a facility organized for this
special purpose and if they represent something more than the free service that individual
attorneys render during private practice.”19

But legal aid has a rich and long history dating back to the 15 th Century. The 1495 Statute of
Henry VII provided for fees to be waived for poor litigants in the common law courts and for
the courts to appoint lawyers for them. The justification for legal aid, old as it may seem, is now
part of Kenyan law. Over the years legal aid has evolved from a “poor man’s or poverty law”

17
Chiuri Ngugi, ‘A Case for Legal Awareness and Legal Aid in Kenya’ [1992] Sabinet African Journals
<https://journals.co.za/doi/pdf/10.10520/AJA10169717_585>.

18
Ibid.
19
Oki Ooko-Ombaka, "Legal aid in Kenya: past, present, future" A paper prepared for presentation at the Law
Society of Kenya Conference, Nairobi 26-28 February 1986.
and “social welfare law” to being a fundamental human right, often linked to development.
Access to justice is cross-cutting in most, if not all, development issues including health,
education, gender equality, economic growth and environmental sustainability.

It is the responsibility of any democratic government to ensure that justice is accessible to

everyone. In Western countries, legal aid is a well-established government-funded system. The
government manages it through courts and organizations of lawyers, like the Law Society of
Kenya. In countries like Britain, private lawyers take on legal aid cases and are paid by the
government from the Legal Aid Fund. In the USA, legal aid is provided by full-time salaried
lawyers working for organizations funded by both the government and the private sector. In
Kenya, the concept of legal awareness is provided by law in the Legal Aid Act of 2016 (CAP.
16A). Section 5 of the aforementioned Act establishes the National Legal Aid Service (NLAS).
Section 9 goes ahead to dictate that the Service shall be chaired by a person who qualifies to be
appointed as a judge of the High Court, a High Court judge, the Director of Public Prosecution or
his representative, one person nominated by the Law Society of Kenya and a nominee of the
Council of Legal Education among others.

Regarding public awareness, Section 7 (1) (k) of the Act mandates the Service to ensure
appropriate measures to promote legal awareness among public members and, specifically,
educate vulnerable sections of society on their Constitutional rights and duties and other laws.
Section 35 of the Act further affirms that the Service shall provide services in civil, criminal,
children, constitutional, and public interest matters as a general principle of legal aid. That the
Service shall identify the legal needs of indigent individuals and disadvantaged communities in
Kenya, prioritizing areas of law and types of proceedings for legal aid provision and formulating
policies for the delivery of legal aid services across different legal domains and case types.
Furthermore, the Service must establish and administer a cost-effective and efficient system to
provide high-quality legal services. By fulfilling these duties, the Service endeavours to ensure
that access to justice is enhanced for those who may otherwise struggle to navigate the legal
system independently.

The Children Act 2022 empowers the Court, when a child appearing before it in proceedings
under the Act or any other written law is unrepresented, to order that the child be granted legal
representation at the expense of money provided for by the state. The section contemplates
situations where a child is in conflict with the law, as in the case of a child offender. Another
instance is with regards to persons living with disability. The Persons with Disabilities Act 2009
s. 38 requires the Attorney-General, in consultation with the National Council for Persons Living
with Disabilities and the Law Society of Kenya, to make regulations providing for free legal
services for persons with disabilities in certain circumstances.

Among the most significant challenges undermining the role of a lawyer in public awareness and
specifically legal aid is lack of adequate financial reward that can sustain him/her in the modern
capitalist society and facilitate their operations. This is despite the fact that the society depends
upon the accessibility of the lawyer for justice. In the history of the emergence of advocacy,
financial problems hardly existed because lawyers were "gentlemen", and as the term's
connotation in the period implies that the lawyer had independent income and thus pleaded at the
bar as an avocation or from a sense of public duty. 20

Legal aid is a fundamental human right that stems from the Constitution. Further, legal
awareness that stems from it ensures access to justice, which is a key ingredient in the operation
of participatory democracy.

UPHOLDING THE CONSTITUTION AND RIGHTS

In Plato’s age-old book, ‘Laws’, the Athenian Stranger claims that the gods will smile only on a
city where the law is despot over the rulers and the rulers are slaves of the law. 21 This statement
is the genesis of the slogan “The rule of law not of men,” which is then shortened, “the rule of
law.” From Plato and Aristotle, through John Adams and 21 st Century Philosophers, the idea of
the rule of law has been the central principle in the desire to uphold constitutionalism, human
rights and human dignity.

The principle of the rule of law then suggests that the most fundamental quality of human rulers
is to give law its way as the law is the ultimate ruler. In that case, it turns out that the rule of law
then relies on the professional ethics of the lawmakers. Not all lawmakers are lawyers but
considering that lawyers are the most important professionals in the law-making process as well
as its application and interpretation, it can then be argued that the rule of law also relies on the
20
Luban D, ‘ Lawyers and justice: An Ethical Study ( Princeton University Press, 1988)
21
Plato, ‘The Laws of Plato (Thomas L. Pangle trans., 1980) 715d
values and professional ethics of lawyers. The legal profession therefore occupies an elevated
position when it comes to defending the constitution as required for every citizen by Article 3 of
the Constitution of Kenya 2010.

Before the introduction of a new constitutional dispensation in 2010, the elite and political class
were known to amend the Constitution to reserve for themselves unchecked power on public
affairs22. Previous regimes, through the Attorneys General, Judicial Officers and lawmakers,
circumvented the prescriptions of law when they found them to be a hindrance to the attainment
of their own or their masters’ political interests, as a result such practices greatly hindered
inclusiveness, freedom of expression, freedom of assembly and media freedom and infringed on
human rights.23

That what makes the practice of law worthwhile is upholding human dignity and the rule of law.
It is the duty of a lawyer to promote the rule of law and constitutionalism by holding the state
accountable when they overstep the bounds prescribed in the Constitution and for violations of
human rights. Especially in cases of gross misconduct and abuse of power such as extrajudicial
killings, assassination attempts, disappearances and arbitrary detention of individuals considered
as threats to the ruling regime. 24 History has it that lawyers were fundamental in the campaigns
for multi-party democracy as well as for a new constitution. Lawyers like Gitobu Imanyara,
Kiraitu Murungi, Dr. Willy Mutunga and several others were illegally arrested, persecuted or
detained without trial. Many others were forced into exile but their determination persisted.

Therefore, lawyers have a duty to challenge unconstitutional laws and policies that threaten to
return Kenya back to the dark ages where laws catered to the interests of the powerful at the
expense of the majority. Through their knowledge and expertise, cases are brought to court
where such policies and laws are struck down or amended to reflect the values and spirit of the
Constitution25
22
Khalifa Azingo, “The concept of Constitutionalism.”(2019)

https://www.academia.edu/40634445
23
Ibid.
24
Ibid.
25
Steven Pfeiffer, “The role of the Judiciary in the constitutional systems of East Africa.” The journal of modern
African studies vol.16 (1978) pp 33-66 https://www.jstor.org/stable/159764
Lawyers are not the only people who can defend constitutionalism and the rule but considering
that they are trained to debate and interpret law by looking at its possible rational purposes, it
then helps blunt the edges of oppression. As philosopher Lon Fuller wrote,

“…when men are compelled to explain and justify their decisions, the effect will generally be to
pull those decisions toward goodness, by whatever standards of ultimate goodness there are.”26

Another justification for the active participation of lawyers in upholding constitutionalism is

because the legal profession is to considerable degree close to the state and has various roles in
public affairs. The public sees them, more than any other professionals, in public forums and
tribunals, administering, interpreting and debating the law. There is also a wide perception that
lawyers are critical to access state institutions, especially institutions of justice, and therefore to
the protection of the rights and property of the people.

The privilege of practicing law in Kenya is a public trust.27 It is a fundamental duty of every legal
practitioner to uphold the Constitution; observe, respect, protect and promote the rights and
freedoms set out in the Bill of Rights, conduct the practice of law with integrity, and to be
scrupulously honest in all dealings with clients, other legal practitioners, the courts, and any
public office or officer, represent each and every client to the best of that legal practitioner’s
ability, advocate fearlessly before the court or any tribunal on behalf of, and in the best interests
of, the client, assist the court in the development of the law, by presenting well-reasoned,
innovative and challenging arguments, such as will advance the objects and purpose of the
Constitution and the rule of law and draw to the attention of the appropriate authority, any actual
or apprehended violation of the Constitution or human rights.

The development of new jurisprudence that emphasizes the promotion of constitutionalism and
the rule of law must be a collaborative effort between the bench and the bar. The judiciary has
generally embraced Public Interest Litigation by allowing applications for amici curiae,
interveners, and interested parties. The judiciary has additionally suo moto inviting individuals
and institutions to join in proceedings as amici curiae. The Law Society of Kenya and individual
advocates take a central role in public interest litigation by spearheading a social movement to
enforce the rights enshrined in our Constitution. This happens by mobilizing resources and
26
HLA Hart and Fuller L, ‘The Morality of Law’ (1965) 78 Harvard Law Review 1281
27
Ghai (ibid)
building capacity to undertake pro bono specific PIL briefs in a consistent and continuous
manner.

Articles 22 and 258 of the Constitution of Kenya 2010; anchors public interest litigation by
widening the scope of locus standi thus making it a non-issue in constitutional petitions. Article
22 provides that every person has the right to institute court proceedings claiming that a right or
fundamental freedom has been denied, violated or infringed, or is threatened. Such proceedings
can also be instituted by a person acting on behalf of another person who cannot act in their own
name; a person acting as a member of, or in the interest of, a group or class of persons; a person
acting in the public interest; or an association acting in the interest of one or more of its
members. Similarly, Article 258 allows such categories of persons to institute proceedings in
defence of the Constitution. There is no doubt that a lawyer has the primary obligation to defend
the rule of law and should invoke these provisions.

In addition, it is the duty of advocates to defend the rights of their clients. This is done through
litigation and giving legal counsel. Individuals, who have had their rights violated, are entitled to
access to justice in spite of being poor, powerless, marginalized or of ethnic minority 28.
Advocates have a duty to pursue justice against violations of human rights by government or
private citizens.

Advocates should be actively involved in public affairs such as advocating for legal and ethical
reforms and policies that provide structure for state organs and officials. Their expertise enables
them to see loopholes that are taken advantage of at the expense of the public. This enables them
to foresee the far-reaching effects of regulations that infringe on human rights and undermine the
principles enshrined in the Constitution and make amendments early on. Example, policies that
stipulate equitable taxation of businesses will have far reaching effects on the economic climate
in the nation, which in turns helps mitigate societal ills caused by poverty and joblessness.

28
Iyana Lama, “Promoting Justice; A practical guide to strategic human rights layering.”
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Patrick Flavin, ‘American Democracy: From Tocqueville to Town Halls to Twitter, 2014. 248’
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Plato, ‘The Laws of Plato (Thomas L. Pangle trans., 1980) 715d

The Star, ‘Maraga, Mutunga key speakers at Lawyers’ Mentorship Scheme (2021) <
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Rondel v Worsley [1966] 3 W.L.R. 950 (Eng. C.A.) at 962-63

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Steven Pfeiffer, “The role of the Judiciary in the constitutional systems of East Africa.” The
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United Nations Basic Principles on the Role of Lawyers