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OWINO: All about the Queen’s counsel

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By SEKOU OWINO
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George Barnard Shaw once said that all professionals are a conspiracy against the laity. He was presciently spot on with regard to the responses to the appointment of a Queen’s Counsel to act in the case of the Deputy Chief Justice in Kenya.

It is nearly three weeks since the Director of Public Prosecutions appointed a lawyer from England of the rank of Queen’s counsel to act in the case relating to the intended prosecution of the Deputy Chief Justice.

Opinion was divided on whether it was the correct action.

Members of the public were thrilled and beguiled almost equally.

The advocates in Kenya were no less divided.

In contention was whether the reason given for the appointment of the foreign advocate was justifiable.

Why should a lawyer from another jurisdiction be permitted to come and practise in Kenya, whatever his competence and qualification in his original jurisdiction of practice?

Even more amazing was the argument that in any event, Kenya has its own roll of senior counsel which is the equivalent of Queen’s counsel in England.

The sceptic advocates asked: Is it that none of the senior counsel in Kenya could attend to the case?

Kenyans given to ultra-nationalism even saw a strand of neo-colonialism while the lawyers given to occupational protectionism which arises from exclusive occupational licensing like that of the legal profession in Kenya saw an opportunity lost.

Given that the right to practise law in all its forms has been held to be a property right, the appointment of an advocate from a different jurisdiction can result in challenges by the cartel that perceives its right as being invaded by the permission to foreigners.

It is not in doubt that services of Queen’s counsel abroad are a good source of invisible export by Britain to its former colonies.

This is fortified by the experience that foreign clients whether litigating in the United Kingdom or within their own countries often prefer to get Queen’s counsel to represent them in difficult or sensitive legal cases.

The issue as to the essence of Queen’s counsel is one that is contentious, not only in Kenya, but in many jurisdictions including in England where this category of lawyers arose and from which many commonwealth countries, including Kenya, have copied.

The distinguished cadre within the legal profession known in England as Queen’s Counsel (or King’s as the monarch may be at any time) is now known as Senior Advocate in Nigeria and Senior Counsel in Kenya and South Africa.

In Sri Lanka, this distinguished advocate is known as the President’s Advocate.

It is only the United States which has insisted on its egalitarianism and resisted the categorisation of practising lawyers in this manner.

The letters gained following an appointment to this rung of the profession, whether as SC for senior counsel or QC for Queen’s counsel, brings with it instant benefit to the appointee: Higher fees, priority rights to address court and the supposedly more complex but in truth just more financially juicier cases.

A joke is repeatedly told of a barrister who hiked his fees in the middle of a case after receiving his letters patent (the document of appointment to that hallowed club).

At one point, the office of fair trading in England opined that the system of Queen’s Counsel offered questionable value to the public consumers of legal services because of the inordinate increase of fees by Queen’s Counsel upon being granted that designation.

The costume of wigs and gowns, which already makes the profession appear puffy, is further elevated by the Queen’s Counsel’s silk gowns.

It is for this reason that they are called Silks and being appointed one makes the appointed say that he has “taken silk”.

This categorisation of the profession into Queen’s counsel, senior counsel and others is not one that is acceptable to all.

Even in Britain, former Lord Chancellor Irvine once proposed a change to the system including its abolition altogether.

His view was that this designation was an arbitrary one that did not necessarily reflect a genuine professional elite and therefore did not serve the ultimate consumers of the service, that is the clients, in any useful way.

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This might be partly true but I have no doubt that senior counsel or Queen’s counsel have in their respective ranks some of the best lawyers who do justice to the society and enhance the standing of the profession.

The existence of Queen’s counsel within the profession and in other countries where it is accepted, calls for the need to recognise advocates of distinction by their skills, integrity, independence, diligence, and experience.

In other words, the Queen’s counsel or similar designation, should be a mark of quality for a lawyer.

In British Columbia, Canada, it is Queen’s counsel who are addressed as my learned friend and other counsel merely as my friend!

But back to Kenya, the answer as to why the DPP thinks it is appropriate to invite a Queen’s counsel for the cases relating to the intended prosecution of the DCJ was not answered directly.

However, it is surmised that perhaps the advocates in Kenya, including the senior counsel, may have been reluctant to do so possibly out of fear of antagonising the Judiciary, generally, or the DCJ individually.

If at all the fear of going against a judge was one part of the reason that an advocate could not be found to take up the case in Kenya, then there seems to be a dereliction of duty on the part of the advocates approached.

My reason for this is that lawyering and advocacy is an office more than just a vocation or profession.

Most lawyers will agree that their entry into the profession is not founded on their partnership deeds in the firms in which they practise or even the letters of appointment executed with their employers.

The foundation of an advocate’s responsibility is that they are officers of the court.

It is to the court that they owe their professional allegiance.

This, rather than their partnership deeds or letters of employment, is the advocate’s office.

This office is taken up by an oath sworn by the advocate in which he or she swears that the honour of privilege of practising law requires that he ensures that justice is the principal objective and must be the result of every brief.

In Kenya, the oath taken by a candidate as a condition to admission as an advocate binds the oath taker to ensure that the rule of law is served at all times without fear or favour or any prejudice whatsoever.

In Ontario, the Candidate must swear that “I shall champion the rule of law and safeguard the rights and freedoms of all persons.”

The core of this oath is common to lawyers all over the world: That whatever jurisdiction an advocate is to practise in, the advocate must swing the sword of his advocacy in whichever direction and at whomever he is called to do to ensure that justice is served within the law.

This principle is further embedded in the form of a statement known as the cab-rank rule which makes an advocate duty bound to take a case from a client and may not refuse to provide legal representation based on the popularity of the client, the case and the nature of the offence or issues at stake.

The phrase is drawn from British cab drivers who developed among themselves a requirement to take on all customers irrespective of their destination.

This was meant to ensure that all persons in need of a taxi cab were able to get it irrespective of the distance of their travel.

Before this, there was a tendency by cab drivers to ignore s over short distances in favour of those headed to further destinations because of the profitability involved.

In the legal context, the cab-rank rule seeks to ensure that the right to representation is guaranteed to every person in need of a legal service.

It, therefore, obligates an advocate who is approached by a client to provide the services to the best of his ability without introduction of a filter on the status of the client or the client’s opponent.

Therefore, if one of the reasons for the need for a Queen’s counsel in the DCJ’s case was that the advocates for some reason were unwilling to take up the case then there may well be a case of breach of the cab-rank rule guideline.

My view, however, is that in the same way that any accused person is entitled to representation by an advocate of his choice, so is the DPP entitled to the choice of counsel, including a Queen’s counsel.



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Public officers above 58 years and with pre-existing conditions told to work from home: The Standard

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Head of Public Service Joseph Kinyua. [File, Standard]
In a document from Head of Public Service, Joseph Kinyua new measure have been outlined to curb the bulging spread of covid-19. Public officers with underlying health conditions and those who are over 58 years -a group that experts have classified as most vulnerable to the virus will be required to execute their duties from home.

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However, the new rule excluded personnel in the security sector and other critical and essential services.
“All State and public officers with pre-existing medical conditions and/or aged 58 years and above serving in CSG5 (job group ‘S’) and below or their equivalents should forthwith work from home,” read the document,” read the document.
To ensure that those working from home deliver, the Public Service directs that there be clear assignments and targets tasked for the period designated and a clear reporting line to monitor and review work done.
SEE ALSO: Thinking inside the cardboard box for post-lockdown work stations
Others measures outlined in the document include the provision of personal protective equipment to staff, provision of sanitizers and access to washing facilities fitted with soap and water, temperature checks for all staff and clients entering public offices regular fumigation of office premises and vehicles and minimizing of visitors except by prior appointments.
Officers who contract the virus and come back to work after quarantine or isolation period will be required to follow specific directives such as obtaining clearance from the isolation facility certified by the designated persons indicating that the public officer is free and safe from Covid-19. The officer will also be required to stay away from duty station for a period of seven days after the date of medical certification.
“The period a public officer spends in quarantine or isolation due to Covid-19, shall be treated as sick leave and shall be subject to the Provisions of the Human Resource Policy and procedures Manual for the Public Service(May,2016),” read the document.
The service has also made discrimination and stigmatization an offence and has guaranteed those affected with the virus to receive adequate access to mental health and psychosocial supported offered by the government.
The new directives targeting the Public Services come at a time when Kenyans have increasingly shown lack of strict observance of the issued guidelines even as the number of positive Covid-19 cases skyrocket to 13,771 and leaving 238 dead as of today.
SEE ALSO: Working from home could be blessing in disguise for persons with disabilities
Principal Secretaries/ Accounting Officers will be personally responsible for effective enforcement and compliance of the current guidelines and any future directives issued to mitigate the spread of Covid-19.

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Uhuru convenes summit to review rising Covid-19 cases: The Standard

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President Uhuru Kenyatta (pictured) will on Friday, July 24, meet governors following the ballooning Covid-19 infections in recent days.
The session will among other things review the efficacy of the containment measures in place and review the impact of the phased easing of the restrictions, State House said in a statement.
This story is being updated.
SEE ALSO: Sakaja resigns from Covid-19 Senate committee, in court tomorrow

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Drastic life changes affecting mental health

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Kenya has been ranked 6th among African countries with the highest cases of depression, this has triggered anxiety by the World Health Organization (WHO), with 1.9 million people suffering from a form of mental conditions such as depression, substance abuse.

KBC Radio_KICD Timetable

Globally, one in four people is affected by mental or neurological disorders at some point in their lives, this is according to the WHO.

Currently, around 450 million people suffer from such conditions, placing mental disorders among the leading causes of ill-health and disability worldwide.

The pandemic has also been known to cause significant distress, mostly affecting the state of one’s mental well-being.

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With the spread of the COVID-19 pandemic attributed to the novel Coronavirus disease, millions have been affected globally with over 14 million infections and half a million deaths as to date. This has brought about uncertainty coupled with difficult situations, including job loss and the risk of contracting the deadly virus.

In Kenya the first Coronavirus case was reported in Nairobi by the Ministry of Health on the 12th March 2020.  It was not until the government put in place precautionary measures including a curfew and lockdown (the latter having being lifted) due to an increase in the number of infections that people began feeling its effect both economically and socially.

A study by Dr. Habil Otanga,  a Lecturer at the University of Nairobi, Department of Psychology says  that such measures can in turn lead to surge in mental related illnesses including depression, feelings of confusion, anger and fear, and even substance abuse. It also brings with it a sense of boredom, loneliness, anger, isolation and frustration. In the post-quarantine/isolation period, loss of employment due to the depressed economy and the stigma around the disease are also likely to lead to mental health problems.

The Kenya National Bureau of Statistics (KNBS) states that at least 300,000 Kenyans have lost their jobs due to the Coronavirus pandemic between the period of January and March this year.

KNBC noted that the number of employed Kenyans plunged to 17.8 million as of March from 18.1 million people as compared to last year in December. The Report states that the unemployment rate in Kenya stands at 13.7 per cent as of March this year while it stood 12.4 per cent in December 2019.

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Mama T (not her real name) is among millions of Kenyans who have been affected by containment measures put in place to curb the spread of the virus, either by losing their source of income or having to work under tough guidelines put in place by the MOH.

As young mother and an event organizer, she has found it hard to explain to her children why they cannot go to school or socialize freely with their peers as before.

“Sometimes it gets difficult as they do not understand what is happening due to their age, this at times becomes hard on me as they often think I am punishing them,”

Her contract was put on hold as no event or public gatherings can take place due to the pandemic. This has brought other challenges along with it, as she has to find means of fending for her family expenditures that including rent and food.

“I often wake up in the middle of the night with worries about my next move as the pandemic does not exhibit any signs of easing up,” she says. She adds that she has been forced to sort for manual jobs to keep her family afloat.

Ms. Mary Wahome, a Counseling Psychologist and Programs Director at ‘The Reason to Hope,’ in Karen, Nairobi says that such kind of drastic life changes have an adverse effect on one’s mental status including their family members and if not addressed early can lead to depression among other issues.

“We have had cases of people indulging in substance abuse to deal with the uncertainty and stress brought about by the pandemic, this in turn leads to dependence and also domestic abuse,”

Sam Njoroge , a waiter at a local hotel in Kiambu, has found himself indulging in substance abuse due to challenges he is facing after the hotel he was working in was closed down as it has not yet met the standards required by the MOH to open.

“My day starts at 6am where I go to a local pub, here I can get a drink for as little as Sh30, It makes me suppress the frustration I feel.” he says.

Sam is among the many who have found themselves in the same predicament and resulted to substance abuse finding ways to beat strict measures put in place by the government on the sale of alcohol so as to cope.

Mary says, situations like Sam’s are dangerous and if not addressed early can lead to serious complications, including addiction and dependency, violent behavior and also early death due to health complications.

She has, however, lauded the government for encouraging mental wellness and also launching the Psychological First Aid (PFA) guide in the wake of the virus putting emphasis on the three action principal of look, listen and link. “When we follow this it will be easy to identify an individual in distress and also offer assistance”.

Mary has urged anyone feeling the weight of the virus taking a toll on them not to hesitate but look for someone to talk to.

“You should not only seek help from a specialist but also talk to a friend, let them know what you are undergoing and how you feel, this will help ease their emotional stress and also find ways of dealing with the situation they are facing,” She added

Mary continued to stress on the need to perform frequent body exercises as a form of stress relief, reading and also taking advantage of this unfortunate COVID-19 period to engage in hobbies and talent development.

“Let people take this as an opportunity to kip fit, get in touch with one’s inner self and  also engage in   reading that would  help expand their knowledge.

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