THE ROLE OF A

LAWYER IN THE
SOCIETY

Presentation by Firm 13
Disdain for Lawyers
• The role of an advocate in the society is widely-discussed but
still greatly misconstrued.

• The disdain has an historical basis

• In some ancient literature, lawyers were described as “pests

of the society” and “cunning oppressors”

• This arises from expectations that the public has on the

capabilities of the law
Misunderstanding the Role of Lawyers

• Some people dislike lawyers because they

misunderstand their roles
• Others have unmet expectations on what the law can
do.
• Roscoe Pound developed the jealousy theory to
explain the popular attitude.
• He believes that other groups resent the position of
leadership lawyers enjoy.
"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)
 The need for lawyers
• The need for law arises from the inevitability of human conflict.
• Such conflicts can be partially attributed to the limited supply of
goods
• It’s impossible to satisfy all human beings.
• Laws are established to ensure that the pursuits of one person do
not cause injustice upon others.
• Sect 4 of the Law Society of Kenya Act mandates the society to
protect and assist the public in Kenya in all matters touching,
ancillary or incidental to the law.
 Lawyers are crucial for
LAWYERS & DEMOCRACY
democracy
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.”

- de Tocqueville (1831
Burden on Lawyers
• Lawyers inevitably find themselves being called upon
to preside over or arbitrate in disputes between
adversaries

• The modern society is more complex thus adding more

burden on the lawyer.

• Emergence of new societal interactions create new

relations that demand regulation.
Lawyers as social engineers
• Roscoe Pound developed the sociological theory of
law

• He described lawyers as social engineers using the law

as a tool for social change.

• According to Lon Fuller, law is not merely a body of

statutes or doctrines but the activity of lawyers as
“architects of social structure.”
Administration of Justice
• Lawyers use advocacy to keep the scales of justice in
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.
Roles in the administration of justice

• Advising clients as to their legal rights and

obligations

• Taking legal action to protect their interests.

• Assist clients before courts, tribunals or

administrative authorities etc.

• Promote the cause of justice by upholding human

rights and fundamental freedoms.
Administration of Justice
• Lawyers who defy professional standards expose the entire
group to ridicule and disdain.

• Lawyers should avoid eroding or undermining public

confidence in the institutions of justice.

• Any lawyer who voluntarily joins the profession takes an

oath to affirm their commitment to facilitate the
administration of justice
Promoting Access to Justice
• Article 48 of the Constitution guarantees every person the
right of access to justice.

• Considering their professional monopoly lawyers are

expected to realize this right.

• They provide pro bono services, represent marginalized

communities,

• They also advocate for legal reforms aimed at improving

the fairness and inclusivity of the legal system.
 Republic v. KLR Ex Parte S O Onyango

• The petitioner, S O Onyango, sought an order compelling the Kenya

Law Reports to provide him with certified copies of certain
judgments and rulings.

• He argued that access to these legal documents was crucial for him to
effectively represent his clients and participate in legal proceedings.

• The court held that lawyers serve as agents of justice and that
denying them access to essential legal documents would impede their
role in the administration of justice.
Justification for Advocacy
• The recognition and interpretation of the law
applicable to any particular dispute may be difficult
and influenced by many considerations.

• No judge or magistrate, however learned and

industrious, can discover everything to be weighed in
the scales of justice, and might therefore overlook
items of vital importance.
Advocacy

"Through the friction of minds comes the scintillation of

truth.“

-Unknown Author
Advocacy
• Advocacy lawyers are morally accountable for their actions
• This helps avoid harming others or undermining the
administration of justice

• Legal Ethicist David Luban says 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”
Discrimination of Clients

• Lawyers are not responsible for the morality of their

clients.
• The morality of the client is not relevant to the
morality of the representation.
• Therefore, they should not refuse to represent clients
because they believe that the case is indefensible or
unjust
• Otherwise, the lawyer usurps the functions of the
judge or magistrate.
 Advocacy and Justice
• Should lawyers’ loyalty to the client supersede fidelity to the law?
• Lord Henry Brougham’s in his 1821 Defence of Queen Caroline 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.”
Advocacy and Justice
• Lord Brougham’s idea of an over-zealous advocate can is
challenging because Advocates operate within a legal framework
whose main interest is the preservation of justice.

• Lord Chief Justice Cockburn disagreed by stating that an

Advocacy should promote justice.

• He 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.”
Lord Denning in Rondel v Worsley

• “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.”
Lord Reid in Rondel v Worsley

• Lord Reid introduced asserted the role of an Advocate

to the profession besides the court and the client.

• He stated 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.”
Exercise of Prosecutorial Discretion

• Article 157 of the Constitution establishes an independent

ODPP

• However, the discretion is subject to the law

• Article 157(11) states that in the performance of its

functions, the ODPP 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 and Development of Jurisprudence

• After independence, Kenya adopted colonial laws.

• Based on this reason and Kenya’s dark history of a

captured judiciary, interpretation of the law only
resulted to ‘mechanical jurisprudence.’

• It lacked the capacity to respond appropriately to

existing and emerging problems.
Lawyers and Development of
Jurisprudence

• The 2010 Constitution imposes a greater intellectual

burden to both lawyers and judges.

• They are required to commit to an endless scholarly

inquiry on the realization of the purposes of the
constitution.
THE ROLE OF A LAWYER IN
MENTORSHIP
Basis for Mentorship
• The legal profession was traditionally taught through
apprenticeship

• Future lawyers would learn by observing the practice of

accomplished practitioners.

• Mentorship plays a crucial role in shaping the competence,

ethics, and professionalism of young lawyers.

• The efficiency of the judiciary relies heavily on the

competence of the bar
Mentorship
• Low access to mentors despite the rising number of
lawyers.

• The responsibility to create mentorship opportunities

mainly falls on senior advocates and the Law Society
of Kenya as an institution.

• It can help bridge the gap between the experience in

school and legal practice
Mentorship & Values of the profession

• The profession has intergenerational values to be

passed to next generation through mentorship.

• This ensures the future of the legal profession is in

safe hands.

• It helps in preserving the integrity of the legal

profession
 Mentorship & Integrity of the Profession

• New lawyers are mentored to uphold integrity of the legal profession

• In Republic v Ahmad Abolfathi Mohammed & another (2019) eKLR,

the Supreme Court emphasized the obligation of advocates to adhere to
professionalism and integrity.

• Integrity, therefore, becomes a central theme in mentorship

• Other values include good governance, rule of law, justice,

transparency, and accountability
Lawyers as Mentors
• The Young Advocates Mentorship Program was
recently launched by the Judiciary in partnership with
LSK.

• Pro bono work forms part of the program as it

highlights the commitment to social justice and public
service.

• The program not only imparts legal skills but also

fosters a culture of mentorship within the legal
profession.
Mentorship
• Lawyers who are more experienced are required to
take up the challenge to mentor their colleagues and
students.

• 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
Basis for Legal Awareness
• Lawyers have specialized knowledge of the law to
the exclusion of most members of the general
public.

• The public finds lawyers useful in accessing

institutions of authority and justice but also for
their role in regulating human and commercial
relations.

• Philosopher Lon Fuller refers to lawyers as ‘the

architects of the social structure.’
Importance of Legal Awareness

• Fosters an understanding of legal norms, active

engagement in the legislative process, and adherence to
legal principles.

• A significant barrier to accessing justice stems from

insufficient legal knowledge, compounded by the belief
that legal knowledge is exclusive to lawyers.

• Aims to improve public understanding of the law,

thereby enhancing rights & resolution of disputes.
The need for legal awareness
• Chiuri Ngugi argues that;

• The law even rules without our consent.

• Law is drafted in English, and the court proceedings are in

English, making it hard for most citizens to understand.

• 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

• Public awareness can be pursued through legal aid

Legal Aid in the 15ᵗʰ 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.

• Over the years, legal aid has evolved from a “poor man’s or
poverty law” 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 & environmental sustainability.
Legal Aid Act of 2016
• Section 5 establishes the National Legal Aid Service

• Section 7 mandates NLAS to promote legal awareness 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.
Children, PLWD & Other Vulnerable
Groups
• NLAS is tasked to identify the legal needs of indigent
individuals and disadvantaged communities in Kenya

• The Children Act 2022 empowers the Court, when a child

is unrepresented, to order that the child be granted legal
representation at state expense.

• Section 38 of the Persons with Disabilities Act 2009

requires the AG & LSK to make regulations on free legal
services for PLWD in certain circumstances.
Financial & Other Challenges

• Lack of adequate financial reward to sustain lawyers 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 hobby or from a sense of public
duty.
 ROLE OF A LAWYER IN
UPHOLDING THE
CONSTITUTION AND RIGHTS
 Rule of Law
• In Plato’s 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.

• This statement is the genesis of the slogan “The rule of law

not of men,” which is then shortened, “the rule of law.”

• For centuries, the idea of the rule of law has been the
central principle in the desire to uphold constitutionalism,
human rights and human dignity.
 Rule of Law & Legal Ethics
• The principle of the rule of law then suggests that human rulers must give law its way as the
law is the ultimate ruler.

• In that case, 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 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.

• That what makes the practice of law worthwhile is upholding human dignity and the rule of
law.
Kenya’s Dark History
• Before 2010, the elite and political class would amend the
Constitution to reserve for themselves unchecked power on
public affairs.

• 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 interests.

• Such practices greatly hindered inclusiveness, freedom of

expression, freedom of assembly and media freedom and
infringed on human rights
 Lawyers as 2ⁿᵈ Liberation Heroes
• Lawyers were fundamental in the campaigns for multi-party democracy
as well as for a new constitution.

• Lawyers like Gitobu Imanyara, Gibson Kamau Kuria, 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.

• Lawyers have a duty to challenge unconstitutional laws and policies

that threaten to return Kenya back to the dark ages
 Holding the State Accountable

• Lawyers are not the only people who can defend

constitutionalism but considering that they are trained to
debate & interpret law by looking at its possible rational
purposes, it then helps blunt the edges of oppression.

• 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.”
Prof Yash Pal Ghai’s Roles of a Lawyers:

• Know that the privilege of practicing law is a public trust.

• 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
Prof Yash Pal Ghai’s Roles of a Lawyers:

• 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
• Draw to the attention of the appropriate authority, any
actual or apprehended violation of the Constitution or
human rights.
Public Interest Litigation
• Articles 22 and 258 of the Constitution anchors public interest
litigation by widening the scope of locus standi

• Every person has the right to institute court proceedings claiming that
the Constitution or 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 in
the public interest;

• A lawyer has the primary obligation to defend the rule of law and
should invoke these provisions.
Lawyers as Reformers
• Lawyers are actively involved in public affairs such as
advocating for legal and ethical reforms and policies.

• Their expertise enables them to see loopholes that are

taken advantage of at the expense of the public.

• They can understand and challenge decisions which

undermine human rights and Constitutional principles