Report on the Conversation with the President of the Law Society of Kenya (LSK), Mr. Nelson Havi, held on 20th April 2020 (4:00pm – 6:00pm)
On Monday 20th April 2020, the co-founder of Zoom Clinics for Lawyers, Mr. Bernard Oundo, held a virtual conversation with Kenyan eminent lawyer and President of the Law Society of Kenya (LSK), Mr. Nelson Havi on zoom. The milieu of the conversation which was attended by lawyers both within and beyond Uganda from countries such as Kenya, was the role the LSK had played in dealing with the challenges presented by COVID-19 not only to the practice of the legal profession in Kenya, but also generally the observance by the republic of Kenya, of her obligations both under the Constitution as well as other relevant instruments at the regional and international levels. This way, the discussion fed into the reflections on how lawyers in Uganda and indeed the East African region can maneuver around the dynamics presented by the COVID-19 outbreak as it continues to alter different facets of the world order. This brief presents highlights of that important exchange.
What is the lawyer’s role during COVID-19?
The conversation unfolded on an acknowledgment that COVID-19 has indeed presented peculiar challenges to all nations across the globe, chiefly because there has been hardly any firsthand experience as to how to deal with similar contexts. The closest relatable development to COVID-19 is the Spanish flu which dates over 100 years ago when the world was not as connected as it is today. As such, the panic and aggressive nature of some of the responses that have been adopted are pretty much due to a lack of experience.
Also noted was the fact that the COVID-19 outbreak has had a huge impact on other sectors of life beyond health which may be categorized as social, legal and economic. Therefore, it was noted, much as lawyers do not have the professional abilities to respond to the health aspects of COVID-19, they are for all intents and purposes concerned with its social, legal and economic aspects. In dealing with such unprecedented situations, several acts that may be of greater discomfort may be warranted, and indeed the authorities may choose to be more overbearing albeit sometimes unnecessarily especially in less advanced democracies. This was cited as the very reason why the lawyers must act. According to Havi, lawyers must always be vigilant to point out the areas that can enable governments to operate within the law without hindering justifiable and reasonable acts of the state in attempt to address the calamities befalling them. Sadly, it was noted, despite their essential relevance, lawyers are often not well received under circumstances as those presented by COVID-19 mainly on account of their insistence on the observance of principles of the rule of law and constitutionalism which governments mistakenly perceive to be an inconvenience. However
The LSK’s approach
In the case of Kenya, Havi noted that the basis of the LSK’s interventions in the responses to the pandemic is the mandate provided for under the Advocates Act (Section 4) and importantly the Constitution of Kenya which empowers Advocates to assist the government of Kenya together with courts of law in ensuring that there is order in the administration of justice and legislation. He noted that the LSK has made various efforts to guarantee observance of human rights, respect for the rule of law in Kenya through a number of acts. For instance, on 28th March 2020, they moved to court and extracted an order to compel the ministries of health and Interior to indicate to Kenyans their level of preparedness to respond to the pandemic in addition to tracing and quarantine all the 239 Chinese – who had just flown into Kenya at the time when it was obvious that their country of origin was fatally affected by the virus. This was intended to protect Kenyans.
Furthermore, following the declaration of the curfew in Kenya, and the associated demonstrable abuse of fundamental rights and freedoms through acts such as maiming of people, housebreak ins, killings etc which were attributed to the manner in which the police was enforcing the curfew, the LSK successfully challenged these acts in Court which among others ordered: the police not to use unreasonable force; for and emphasized the necessity of allowing journalists to cover the incidents in order to guarantee caution; that the implementation of the curfew has to be done within the law; as well as gazeting of members of the law society as essential service providers. Additionally, the LSK worked with stakeholders such as the judiciary in order to ensure that court operations are scaled up in order to enhance A2J for Kenyans. Following the declaration of the LSK as an essential category of service providers who needed to continue with their trade, the Chief justice of Kenya among others issued guidelines to ensure escalated operation of the courts through digital platforms.
Reflections on the impacts of COVID-19 for, and the future of, the legal profession
The foremost impact of COVID cited by Havi was that of loss of livelihood for many lawyers who reportedly largely depend on court work and land registries which were either fully closed or operating on half capacity. Havi noted, for instance, that even when the Chief justice of Kenya escalated court operations, it was obvious that it was not humanly possible for the lawyers to trade normally. This was attributed partly to the fact that a lot of systems, including the lawyers and the judiciary itself and other relevant stakeholders relevant to the practice of the legal profession are still fixed to trading through physical presence and therefore unable to harness the virtual alternatives.
However, as COVID-19 has proved, the losses so far encountered provide sufficient evidence to lawyers that they need to embrace technology. According to Havi, the progression towards digitizing the legal practice should concern us all, including those firms that are seemingly tech savvy. This is because if other players in the field are yet up to the standard since without a sectoral shift, they cannot find usefulness in their investment. Otherwise, those who are not agile and adaptive to tech are likely to fail and some laid off as they will no longer be relevant. Also highlighted is the continuing need for provision of continuous legal education to lawyers during this period as mandated under the regulatory frameworks, yet this has traditionally been done through physical forums. In Kenya there have been attempts to accredit some digital forums for purposes of fulfilling the CLE points requirement. In view of the apparent risk posed by the holding of physical meetings for as long as COVID-19 remains as threatening as it has proved to be, it was suggested that consideration needs to be made for online provision of the CLE services to lawyers both to enable them fulfil the legal requirement and as well develop them professionally.
The long and short of the discussion in this line was that, first of all, lawyers must envision exactly how they want to practice their profession in the future. That vision will then provide a basis and actually guide the reform process by the regulators. It was noted, however, that there will still remain some aspects of legal practice that may not be very effectively facilitated by some of the currently existing remote digital platforms. An example cited in that regard is the examination of witnesses which tends to rely on the demeanor of the witness in addition to their verbal averments, but which would not be very easy to ascertain through a virtual interaction.
The other important dimension of the discussion on the implication of the digital drive in legal practice was around the future of office space on which many lawyers, especially the big law firms, often spend heavily in order to accommodate their in house staff and clients. In response to an observation that maybe that may no longer be necessary when finally everybody is able to operate remotely, Havi insisted that physical office space will still be necessary. His argument is that one still needs the space and ambiance in order to focus and think while delivering the digitally demanded legal services. He juxtaposed this with solely virtual offices which he felt is unrewarding.