Two advocates have accused parliament of shelving the findings of a petition that if considered would save lawyers from the usual long wait for admission to the bar – until now that Chief Justice David Maraga is set to retire on January 12, 2020.
The petitioners, Brian Onyango Moses and Boru Gollo Jattani (who are both Advocates), first sent the petition to Parliament in June and met the Justice and Legal Affairs Committee (JLAC) on November 7 last year to prosecute their case. But parliament is yet to give further directions on what became of the petition, a year later.
Their petition sought, among other things, “the amendment of Section 15 of the Advocates Act of 1989 to allow the Deputy Chief Justice or the Senior Most Judge of the Supreme Court to admit qualified persons to the Roll of Advocates, in the absence of the Chief Justice.”
In a follow-up letter received by the National Assembly on November 9, 2020, the two advocates observe that “in line with Standing Order Number 227(2) and (3), the JLAC is required to report their findings to the House and Clerk to notify us (petitioners) of the decision of the House within 14 days.”
“Kindly advise on the progress of the matter, noting that one of the occurrences that the Petition was seeking to address is about to occur; namely the retirement of the Honourable Chief Justice,” their letter reads.
According to Mr. Onyango (one of the petitioners), when they did prosecute their case before the JLAC last year, “committee members stressed on the importance of the proposals noting that the retirement of the CJ had delayed even the admission of some of them (JLAC members) when they were due for admission in the days past.”
Chief Justice David Maraga began his terminal leave last Friday and will retire officially on January 12 next year, on his 70th birthday.
As things stand, a lot of lawyers who passed bar exams at the Kenya School of Law (KSL) in February 2020 and finished pupillage in August this year will have to wait until when the next CJ shall have been appointed.
The Judicial Service Commission (JSC) is expected to finish the recruitment of the next CJ within six months after CJ Maraga’s retirement. The process will entail a call for applications, vetting by both JSC and parliament before the appointment of the winning candidate by the president.
Despite mounting opposition by activists against deputy CJ Philomena Mwilu’s fitness to perform duties of chief justice in an acting capacity, she is likely to assume the roles upon Hon Maraga’s exit.
Nonetheless, whoever shall take up that responsibility will have no powers to admit advocates to the bar.
The two most recent admissions that were presided over by CJ Maraga happened in November and July 2020 when some of Kenya’s public figures – Sports Cabinet Secretary Amina Mohammed and Nandi Senator Samson Cherargei – signed the Roll of Advocates at the Supreme Court. About 200 qualified lawyers were admitted.
The petitioners now approximate that nearly 700 KSL graduands will have to exercise patience in wait for the return of CJ Maraga’s successor after parliament failed to give direction.
This will be a replica of what the situation was like in 2016 when CJ Willy Mutunga retired and his deputy Kalpana Rawal was battling issues related to her age. Justice Mohammed Ibrahim, then Senior Most Judge, had no jurisdiction to order the admission of advocates, causing the delay.
The petition before parliament had also sought to reduce the period of hearing petitions on admission from 90 to 30 days. Moreover, the duo is critical of the fact that all along, the CJ is the one who decides on which date he (or she) is to admit lawyers.
“There is no calendar to follow and admission dates are irregular because it is only the CJ who decides whenever he feels like,” their petition had read.