A Nairobi court this week described as absurd regulations that bar advocates from the East African Community who have not practised for more than five years from being admitted to the roll of advocates in Kenya.
Justice Weldon Korir sitting in the High Court, said such rules contradict the vision of the EAC.
He was ruling on a case where a Kenyan who studied law in Uganda’s Busoga University and was admitted to practise law in Rwanda, had been denied enrolment.
Justice Korir said that any attempt to block Kenyans who get admitted as advocates in partner states would “not only be discriminatory but also absurd.”
“It will imply that Kenya has no confidence in the law and procedures governing admission of advocates in the partner states,” he ruled.
The applicant, Francis Muiruri Kimangi, filed a petition after his application to be admitted as an advocate of the High Court of Kenya was rejected by the Council for Legal Education. The regulations empower the council to approve or decline foreign qualifications in law.
Where it determines that there are quality issues, it may recommend that such a person to undertake a remedial programme at the CLE, which is charged with oversight of legal education in Kenya.
Mr Kimangi made the application on February 27, 2017 to the Law Society of Kenya but the lawyers body referred him to the Council for Legal Education. The application was rejected because he had not practised law in Rwanda for five years.
In opposing the petition, the CLE said Mr Kimangi’s application fell short of the five-year practice required under section 139(1) (e) (i) of the Advocates Act and so he was required to undertake the bar examination to qualify for admission.
The council further said that Busoga University is not recognised in Kenya as per a Public Notice dated November 30, 2012.
But in the decision, the judge said Section 13(1)(d) of the Advocates Act creates a special category of persons eligible for admission to the Roll of Advocates: Any person who is an advocate of the High Courts of Uganda, Rwanda, Burundi and Tanzania.
Justice Korir added that unlike a person admitted as an advocate within the Commonwealth, a petition by an advocate from an EAC partner state has no conditionality.
According to Justice Korir, applying the regulation will amount to introducing conditions through subsidiary legislation that are not found in the parent Act.
He said Article 126 of the Treaty Establishing the EAC states that in order to promote achievement of the objectives of the Community as set out in Article 5 of the Treaty, partner states shall take steps to harmonise their legal training and certification and shall encourage the standardisation of judgments of courts within the Community.
It also calls for the establishment of a common syllabus for the training of lawyers and a common standard to be attained in exams in order to qualify and to be licensed to practice as an advocate in their respective superior courts.
Justice Korir said the meaning of that commitment by the member states is that they wanted to break down all the barriers to law practice within the region.
He said there should be a way of imposing regulations without prejudicing the objective of the EAC of breaking down the barriers hampering integration.