ATP 105 Professional

Ethics - 2016
LECTURE 20 STATUTES THAT IMPACT THE LEGAL PROFESSION
Course Instructor Stephen Mallowah LLB, LLM, MSc

LESSON CONTENTS
Over view of the legal profession
Stakeholders in the legal profession
The Constitution of Kenya, 2010 Chapters 10, 6, 13, 50
Statutes that impact the legal profession
IBA Code of Conduct
LSK Act
Advocates Act
Legal Education Act
Kenya School of Law Act
LSK Digest of Professional Conduct and Etiquette (2000)
Judicial Services Act
Code of Conduct for Judges and Magistrates

Contents
UN Principles of Judicial Independence
Bangalore Principles of Judicial Conduct
Common wealth Latimer House Principles
Public Officers Ethics Act
Anti-corruption and Economic Crimes Act
Leadership and Integrity Act
Director of Public Prosecutions Act
Prosecutors Code of Conduct and Ethics
National Prosecution Policy
Effect of the impact
Proposals for reform

Part 1
Overview of the Profession
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Legal Profession
Legal profession is made of practising and non-practising lawyers. Current no
of practicing lawyers are about 7,000(LSK Website) We do not have formal
numbers of non-practising lawyers
The career paths in legal profession include:
Private practice- Advocates who represent clients in legal matters. Need PCs
Public Service- Judiciary, AG (State Councils),Judges, Magistrate, Registrars,
corporation/company secretaries, Legal Officers, town clerks, NA clerks and
staff, legal tribunals etc. Those working under AG and the bench need not take
PC. Public Servants are bound by Public Officer Ethics Act
Civil Society- eg Kituo Cha Sheria, FIDA(K), COVAW
Commerce and Industry- Insurance companies, banks, etc

Part 2
Stakeholders
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Stakeholders
Advocates
Clients
Public
Public Servants
Judiciary
Attorney General
Prosecution
Law schools

Part 2 - 1
Advocates
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Advocates (In private Practice)

Constitution, Article 46 (consumer rights)
LSK Act
Advocates Act
LSK Digest of Professional Conduct ad Etiquette(2000)
Advocates Remuneration Order
Advocates Disciplinary Committee Rules
Advocates (Practice) Rules
Advocates (Accountant Certificate) Rules
Advocates (Accounts) Rules
Advocates (Practising Certificate Fees) Rules
Advocates Continuing Legal education Regulations

Part 2 - 2
Public Servants
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Public Servants
Chapter 6 of Constitution
Leadership and Integrity Act
Public Officers Ethics Act
Organizational code of Ethics
Anti-corruption and Economic Crimes Act
Certified Public Secretaries Act

Public Officers Ethics Act

S 2 :Definition of Public Officer- Any employee of:the Government
or any department, service or undertaking of the Government; the
National Assembly or the Parliamentary Service;a local
authority;any corporation, council, board, committee ,undertakings
of public utility or otherwise to administer funds belonging to or
granted by the Government or money raised by rates, taxes or
charges in pursuance of any such law; a co-operative society
established under the Co-operative Societies Act;a public
university; any other body prescribed by regulation

Guiding Principles part III

Professionalism, confidentiality
Rule of law
No improper enrichment gifts given in official capacity of certain value to be surrendered to the
state.
Conflict of interest
Not use office for collection of harambee
No acting for foreigners
Care for property
Political neutrality
Nepotism
Give honest and impartial advise
No misleading the public
Conduct private affairs away from office
No sexual harrassment

Public servants
Wealth declaration
Reporting improper orders
Anti-corruption and Economic Crimes Act
Corruption offences
Bribery of agents, secret inducement for advice, deceiving principle,
conflict of interest, inducement to trustees for appointment, bid rigging,
mismanages property, pays for substandard goods, dealing with suspect
property
bribery; fraud; embezzlement or misappropriation of public funds; abuse
of office; breach of trust; or an offence involving dishonesty (i) in
connection with any tax, rate or impost levied under any Act; or (ii) under
any written law relating to the elections of persons to public office

Part 2 - 3
Prosecution
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OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Articles 157 & 158 of the Constitution establishes the office and gives mandate-S4 of
The office of the Director of Public Prosecutions Act no 2 of 2013
Institute and undertake criminal proceedings against any person in any court
Take over and continue criminal proceedings
Discontinue criminal proceedings before judgement with leave of court
DPP has tenure of 8 years
DPP has powers to order IG to carry out investigations
S 6 of ODPP Act- Independence of prosecutor
S15-protection from personal liability for work done in good faith
DPP may delegate to prosecution counsel and other prosecutors in his office or
advocates in private practice appointed under s 30
S 20- DPP and prosecution counsel are entitled to practice as though they are
holding practising certificates

NATIONAL PROSECUTION POLICY

Provides guidelines for all public prosecutors
Duties of prosecutor
Independent, fair, effective
Prosecutions based on merit and in accordance with the law
Decisions to be professional and impartial
Prosecution on adequate evidence and justified in public interest
Timely, effective and efficient prosecutions
Consistency of decisions to prosecute
Conduct of prosecutions with impartiality
Treat all persons including accused fairly
Treat victims and witnesses with respect and sensitivity

Prosecutorial Discretion/ Independence

In deciding whether or not to prosecute a
prosecutor should bear in mind that:
he or she is an officer of the court and has a duty
to be fair, independent and objective. A prosecutor
must not allow his or her decision to prosecute or
conduct of a prosecution to be influenced by
improper or undue influence from whatever source

Non-discrimination
A prosecutor must ensure that
he or she performs his/her duty professionally and on a
non-discriminatory basis. Personal prejudices and/or
opinions regarding a persons colour, race, ethnic
background, gender, religious beliefs, political views or any
other analogous matter or traits are illegal,
unconstitutional, ultra vires the authority to prosecute and
professionally inappropriate.

Coercion
A prosecutor should not proceed with more charges to
encourage the accused to plead guilty to a few or proceed
with serious charges to encourage the accused to plead
guilty to a lesser charge
It is not their duty to obtain a guilty plea at all costs but to
prosecute the case diligently.

APPOINTMENT/REMOVAL FROM OFFICE

Nomination by selection panel
President forwards
Approves

nomination

National Assembly
President appoints

Removal from office- Art 158 of the Const.- inability to perform, noncompliance with chapter 6, incompetence, gross misconduct or
misbehavior through a petition to PSC. PSC will appoint a tribunal to hear
the matter

Prosecution
Chapter 6 of Constitution, Article 157(exercise prosecutorial
powers of the state).
Leadership and Integrity Act
The Office of the Director of Public Prosecutions Act
National Prosecution Policy
Prosecutors Code of Conduct and Ethics
Article 50- rights of arrested persons
Public Officers Ethics Act
Anti-corruption and Economic Crimes Act

Part 2 - 4
Judiciary
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Judiciary
Constitution Article 159-173
Independence-Article 160
Judicial Service Act
Code of Conduct for Judges and Magistrates
UN Principles of Judicial Independence
Bangalore Principles of Judicial Conduct
Common wealth Latimer House Principles

Bangalore Principles
An informal group of Chief Justices and Superior Court
Judges from around the world (later known as the Judicial
Integrity Group), which led to the adoption of the famous
Bangalore Principles of Judicial Conduct (2002)
Has several values adopted by various nations including
Kenya

Principles
Value 1: INDEPENDENCE
Principle:
Judicial independence is a pre-requisite to the rule
of law and a fundamental guarantee of a fair trial. A
judge shall therefore uphold and exemplify judicial
independence in both its individual and institutional
aspects

Principles
Value 2:
IMPARTIALITY
Principle:
Impartiality is essential to the proper discharge of the
judicial office. It applies not only to the decision itself but
also to the process by which the decision is made.

Principles
Value 3:
INTEGRITY
Principle:
Integrity is essential to the proper discharge of the judicial
office.

Principles
Value 4:
PROPRIETY
Principle:
Propriety, and the appearance of propriety, are
essential to the performance of all of the activities
of a judge.

Principles
Value 5:
EQUALITY
Principle:
Ensuring equality of treatment to all before the courts is
essential to the due performance of the judicial office .

Principles
Value 6
COMPETENCE AND DILIGENCE
Principle:
Competence and diligence are prerequisites to the due
performance of judicial office.

THE CONSTITUTION, THE STATUTE LAW, AND THE FRAMEWORK FOR

JUDICIAL ETHICS
The foundation is the Constitution of Kenya, 2010, a document of the primary
character which I had the occasion, judicially, to thus typify [in Joseph Kimani
Gathungu v. The Attorney-General & The International Criminal Court,
Mombasa H.C.Const.Ref.Appl.No.12 of 2010]:

"A scrutiny of the several Constitutions Kenya has had since

Independence shows that, whereas the earlier ones were designed as
little more than a regulatory formula for State affairs, the Constitution of
2010 is dominated by a social orientation', and as its main theme, rights,
welfare, empowerment', and the Constitution offers these values as the
reference-point in governance functions. Such a public-values
orientation, in my opinion, readily interfaces with the objectives of
international law."

CONSTITUTIONAL BASIS
Art. 159-173
Independence guaranteed by Art. 160
Protection from liability for work done in good faith (Art. 160(5))
President appoints CJ, DCJ in accordance with recommendations
of JSC and approval of NA
Judges in accordance with JSC recommendations
CJ & Supreme Court judges qualifications 15 years experience, 10
years for CA and HC
CJ in office for 10 years
A judge retires at 70 (early retirement at 65 yrs)

Framework
The relevant provisions are set out in Chapter 6 of the Constitution, bearing the rubric,
"Leadership and Integrity". Judges and Magistrates are named as "State officers" (Art. 260).
The mandate of all State officers "is a public trust" (Art.73(1)(a)); and all such officers carry
"the responsibility to serve the people, rather than the power to rule them" (Art.73(1)(b)).
The most basic principles to guide such officers are expressly stated (Art.73(2)):
"The guiding principles of leadership and integrity include a)
b) objectivity and impartiality in decision-making, and in ensuring that decisions are not
influenced by nepotism, favoritism, other improper motives or corrupt practices;
c) selfless service based solely on the public interest, demonstrated by d) honesty in the execution of public duties; and
e) the declaration of any personal interest that may conflict with public duties;
f) accountability to the public for decisions and actions;
g) discipline and commitment in service to the people."

Avoidance
The Constitution (Art.75) makes specific provisions
regarding "conduct of state officers"; it provides that "a
State officer shall behave, whether in public and
official life, in private life, or in association with other
persons, in a manner that avoids 1. any conflict between personal interests and public
or official duties;
2. compromising any public or official interest in
favour of a personal interest; or
3. demeaning the office the officer holds."

Discipline
In cases of breach, Art. 75 provides for the application of
appropriate disciplinary procedures as laid down by law, in
respect of the relevant category of State officer.
Article 75(2) of the Constitution is cast in general terms, regarding
disciplinary measures to be taken against State officers who are
in breach of the rules of ethics; and, as regards the Judiciary, this
leaves it to other provisions of the Constitution and to statute law,
to provide for specific measures of "discipline". But an initial
examination of such other provisions gives the impression that
"discipline," as opposed to "removal," is not contemplated for
Judges.

Removal
Article 168 of the Constitution provides for the removal of Judges:
"(1) A judge of a superior court may be removed from office
only on the grounds of 1. inability to perform the functions of office arising from
mental or physical incapacity;
2. a breach of a code of conduct prescribed for judges of the
superior courts by an Act of Parliament;
3. bankruptcy;
4. incompetence; or
5. gross misconduct or misbehavior."

Discipline
The Judicial Service Act, 2011 (Act No. 1 of 2011) carries detailed
provisions on "Appointment and Removal of Judges and Discipline
of Other Judicial Officers and Staff" (Part.V), and this signifies that
whereas the Judicial Service Commission is empowered (s.32) to
subject "judicial officers" to disciplinary procedure, "judges" are only
subject to investigation by a tribunal appointed by the president, in
relation to the sanction of removal (Art.168(5) of the Constitution; s.31
of the Judicial Service Act). The Act defines "judge" as "the presiding
officer of a superior court" (s.2); and "judicial officer" as follows:
"'judicial officer' includes a registrar, deputy registrar, magistrate,
Kadhi or the presiding officer of any other court or local tribunal as
may be established by an Act of Parliament, other than the courts
established to hear and determine disputes relating to employment
and labour relations and the environment and the use and
occupation of, and title to, land."

Judicial Service Code of Conduct and Ethics, 2003

(Legal Notice No 50 of 2003).
The Bangalore Principles, constitute the contemporary
international standard.
The Kenyan Code was established in 2003 by the Judicial
Service Commission in terms of section 5(1) of the Public
Officer Ethics Act 2003. That section requires each
commission responsible for a public service sector to
establish a specific code of conduct and ethics for the
public officers for which it is responsible.

Challenges in judicial ethics

On the question of the range of disciplinary measures that may be taken

against a Judge, the Ouko Report (2010) stated (p.28):

"Disciplinary action should generally follow complaints that do not

warrant the removal of a Judge from office. Such grounds include less
serious misconduct, misdemeanor or unprofessional conduct. Under
the current legal framework, the Constitution provides for the
procedures for removal of Judges only, and there are no equivalent
procedures for disciplinary action against a Judge for misconduct not
warranting removalThe effect is that disciplinary control over Judges
is the responsibility of the Chief Justice as the head of the Judiciary.
However, this role is exercised in a limited manner, and is
discretionary, for instance, through transfers, withdrawal of official
work, refusal to grant permission to attend conferences or workshops
or refusal to grant leave."

Recommedation
Ouko Task Force is recommended (p.29):
"A Complaints Sub-Commission of the JSC be created
to continuously receive, investigate, evaluate and act
upon complaints against Judges, other judicial
officers and staff."

EMERGING JUDICIAL-ETHICS ISSUES

Against the background of the main principles on judicial
ethics - independence, impartiality, integrity, propriety,
competence and diligence - the reality which causes the
public's lack of confidence in the Judiciary takes the
following forms: unfair decisions; bias; conflict of
interest; repulsive judicial conduct; corruption;
collusion; disreputable associations; unwarranted
exclusion from the seat of justice.

Emerging issues
A quality-quantity conflict, and personal commitment
Personal attitude, and goals of ethics
Institutional arrangements, and judicial ethics
Peer-review and preliminary issues of ethics
Judicial Ethics and Judges Conduct: The Complaints
Mechanism
By The Hon. Justice (Prof.) Jackton B. Ojwang Judge of the
Supreme Court of Kenya 2011.

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