A look into proposals for complaints on advocates

On 20 May 2022, the Advocates Complaints Commission (Commission) published the Draft Advocates Complaints Commission Bill 2022 (Draft Bill). In addition to the laws of Kenya applicable to all citizens, advocates are subject to a higher standard of professional regulation because of the nature of the profession.

Breach of professional standards makes an advocate liable for punishment for professional misconduct. Complaints against advocates may be lodged with the Commission, which was established in 1989 under section 53 of the Advocate’s Act.

The Commission is currently a department within the Office of the Attorney General and Department of Justice. The Draft Bill proposes to have a stand-alone Act, distinct from the Advocates Act, governing the Commission. The Draft Bill in its present form gives the Attorney-General significant power over the Commission.

The Attorney-General is the appointing authority and can reject nominees, and has control over the budget of the Commission. The powers were previously held by the President but are to be transferred to the Attorney-General under the Draft Bill.

Composition

The Attorney-General and the President have power to ensure that the person appointed is of their choosing. The Draft Bill proposes that the Commission should be composed of three commissioners.

The chairperson is to be appointed by the President on the recommendation of the Attorney-General. One commissioner must be an advocate with at least ten years’ experience and is to be appointed by the Attorney-General.

The other commissioner must be a non-advocate with a university degree and is also to be appointed by the Attorney-General. The Attorney-General is the appointing authority for the commissioners.

During recruitment to fill a vacancy, the Public Service Commission is required to conduct the interviews. However, where the President (in the case of the chairperson) or the Attorney General (in the case of the other commissioners) are dissatisfied with the person recommended for appointment, the appointing authorities can reject the nominee.

The Draft Bill does not achieve its intended role of delinking from the office of the Attorney General which is retained as the appointing authority for the commissioners.

Other powers of the Attorney-General

In addition to being the appointing authority, the Commission also reports to the Attorney[1]General and its financials are linked to the office of the Attorney-General. The Attorney- 2 General, on the advice of the Salaries and Remuneration Commission, is to determine the salary, allowances, pensions, or gratuities to be paid to the commissioners.

The Commission is to provide the Attorney-General with the annual estimates of expenditure for the financial year. Further, annual reports on activities of the Commission are to be submitted to the Attorney-General and Parliament.

From the above, the Attorney-General retains structural control of the Commission despite the intentions to de-link as set out in the Draft Bill’s call for comments. The Commission and the Attorney-General’s office are still linked and further changes to the Draft Bill are necessary if the intention is to delink the two entities or create some form of functional or institutional independence.

The High Court has already held that the Attorney[1]General is not a Cabinet Secretary. The implications of the decision are that a Cabinet Secretary to be responsible for legal affairs may be appointed.

In the past, there has been a Minister for Justice and Constitutional Affairs. If a Cabinet Secretary is appointed or assigned to be in charge of justice and legal affairs, there is likely to be a power struggle with the Attorney-General’s office over the appointment of the commissioners who are to be state officers.

Ambiguity

In its present form, the Draft Bill gives the Commission authority to investigate and punish any advocate irrespective of place of work. The Advocates Act exempts certain Advocates from the scope of the Advocates Disciplinary Tribunal.

This includes advocates working as officers in the Attorney-General’s office and the Director of Public Prosecutions office. Since such a provision is not included in the Draft Bill, the Commission would be able to investigate state counsels, in-house counsels, county government advocates, and advocates in the private sector.

If this is the intention of the drafters, it should be clearly spelt out whether any advocate is exempt. Proposals To enhance the Commission’s independence, the Attorney-General and the President should not have the power to reject the Public Service Commission’s nominees.

Because the commissioners are to be state officers as proposed under the Draft Bill, the Salaries and Remuneration Commission should be the sole deciding authority on the remuneration and benefits payable.

Further, the Commission should be able to present its annual estimates directly to Parliament rather than to the Attorney-General’s office.

The legal profession would without a doubt benefit from a regulator that is independent from control of the Law Society of Kenya. Appropriate changes need to be introduced to ensure the independence and proper functioning of the Commission.

If the Draft Bill is not revised, the 3 Commission established may be under the thumb of the Attorney-General’s office. As the court in George Bala v Attorney General noted, it would be wrong to rely on the goodwill or good intentions of the holder of the Attorney-General’s office not to abuse power.

Ndung’u is an advocate of the High Court of Kenya and Mbithi is a lawyer