The volunteer position of Chairperson attracts no benefits and is given to the elder advocates who show a continued interest in leadership that maintains the tradition and nobility of the Senior Counsel Bar (SCB) according to Senior Counsels.
It is for this reason that former Chief Justice Willy Mutunga and the leadership of Law Society of Kenya (LSK), at the time saw no need to create rules for the election of its leaders which has often led to divisions as witnessed in LSK. The absence of electioneering and campaigning was cited as the stabilising factor for the Senior Counsel Bar.
Willy Mutunga, David Maraga and current CJ Martha Koome were reported to have reached out to the Senior Counsel Bar during a crisis in the administration of justice. Mutunga, when cornered by the Eric Mutua-led LSK, asked the bar to mediate the disputes that had arisen as the bar members who are seen as leaders and veterans lauded for upholding ethical conduct and desist from social media trolls.
On Wednesday, July 14 CJ Martha Koome hosted a luncheon for SCB members to discuss and dialogue over the future of the Judiciary, digital transformation, clearing the backlog of cases and the crisis at the LSK.
Fred Ojiambo SC, the Chairman of the SCB was in attendance alongside 32 others. 8 SCs were held up and sent their apologies. SC Ojiambo and CJ Koome addressed the luncheon on digital transformation in the Judiciary, while all SC and judges also made contributions in an event that ended at 5 pm.
After the Judiciary posted the pictures and information about the event, Senior Counsel Ahmednasir Abdullahi tweeted that he was snubbed from the event and that he was the duly elected Chairman of the Committee of Senior Counsel.
Several senior counsels who spoke to kenyagist.com argued that Ahmednasir gave the impression that he was speaking for the Senior Counsel Bar, and therefore disputed the leadership of Fred Ojiambo.
They added that LSK President Nelson Havi and SCs Paul Muite, Tom Ojienda, Rtd CJ Willy Mutunga initially led a small group in recognising Ahmednasir as the leader of the SCB, only to find that 95 percent of the bar did not recognise the change in leadership, nor did they approve the unconventional attempt to take over the leadership in a meeting called by Havi.
The Genesis
Insiders at the SCB admit that there are no rules and procedures to govern the conduct of elections, but this can be traced back to deliberate decisions made during the reign of former Chief Justice Willy Mutunga and the Eric Mutua led LSK.
From the inception of the SCB in 2003, the appointment of the Chair has largely been by way of consensus starting with SCs Amos Wako followed by the Late Mutula Kilonzo, and now Fred Ojiambo.
While this state of affairs was accepted by the majority of SCB, Ahmednasssir and a group of SCs allied to him thought differently, according to his colleagues. It is believed that the restlessness was in preparation for the David Maraga succession, with some in the group hoping to position themselves strategically for the race.
Havi’s Election into Office
In February 2020, Nelson Havi was elected as LSK President for a two-year term, 2020-2022. His entry unsettled many, in the LSK due to his abrasive ways especially on social media, where many of his targets were his fellow advocates and judges.
Much in the same way as Ahmednasssir was accused of attacking judges in cases he was handling and accusing them of corruption reportedly without providing evidence. There was a petition 2/4/2019 pending before the Senior Counsel Conferment Committee for the removal of Ahmednasir as SC for alleged misconduct by advocate Majimbo Georgiadis which remains pending to date.
Havi’s attitude has also been a source of conflict within LSK, leading to a major fallout. One team headed by Havi and another by 8 Council members and the LSK CEO Mercy Wambua. Over 1,000 LSK members called for a special general meeting (SGM) scheduled for July 30 to discuss Havi’s conduct after Wambua accused him of assault.
In as much as Havi has been in the spotlight by winning a few public interest cases that have seen the courts overturn Executive Orders, to arguing against the Building Bridges Initiative (BBI) case in the High Court and Court of Appeal, he also crossed paths with many of his colleagues.
The Ahmednasssir’s claim to leadership of a committee of the LSK to deal with SCs affairs started when Havi convened a meeting on May 20, 2020, coordinated by Ahmednassir and attended by a handful of SCs including SC Mutunga, Muite and Ojienda which resulted in the abortive attempt to change the leadership of the Senior Counsel Bar.
Legal experts argued that the Havi/LSK meeting held at the LSK Secretariat could not legitimately have been converted into an election forum for any position in the Senior Counsel Bar. Why?
“Havi was elected president of LSK in February 2020, and could not by dint of Section 21 of the LSK Act assume the powers of the office until after the Annual General Meeting which was eventually held virtually on July 23, 2021. Any decisions made by President-Elect Havi, or the new council were treated as null and void, including the purported decisions made with a handful of Senior Counsels in the May 20, 2020 meeting as he was yet to formally and legally assume office, and of course, the powers or authority of office,†a Senior Counsel argued.
The Controversial Meeting
Prior to the meeting, Ahmednasssir was unilaterally designated as the coordinator of the proposed meeting by Havi, whereas at the material time, SC Fred Ojiambo (Chair), SC Zahir Malik (Convenor), SC Omesh Kapila (Secretary) were the Senior Counsel Bar office bearers.
“Further, no apologies were noted as would be required of a formal SCB meeting. Havi acted both as the convenor and master of ceremonies, giving the opening statement, and confirmed that he had called the meeting to deliberate on his three-point agenda.
“There was also no recorded indication that it was a formal meeting of the Senior Counsel Bar, and therefore in the absence of the legitimate Chairman (Fred Ojiambo SC), a resolution was made to elect a temporary chair. Nevertheless, SC Paul Muite was elected to chair the ill-fated meeting,†the SC added.
The Havi convened meeting created a Committee of Senior Counsel under Section 40 of the LSK Act and resolved that the committee was prohibited from publicly taking a contrary position to that of the Council of the LSK. This position differs from that of the SCB which has the autonomy to take differing positions from that of the LSK leadership, as it has done since inception. This position has since been upheld by the High Court.
Ahmednassir and a handful of SCs, later went on to claim that he was the Chairman of a Senior Counsel Committee created by Havi under Section 40 of the LSK Act. Ojiambo and the majority of the SCs did not see any contradiction as his mandate was to support and be answerable to the Havi led Council. Effectively the deliberations of meetings did not have any impact on the leadership of the SCB and was purely a matter for the LSK council.
The matter was, nonetheless, pronounced upon by the High Court by Justice Pauline Nyamweya on May 11, 2021, who ruled that the Senior Counsel Bar is autonomous from the LSK’s leadership and is not one of the committees that the Council can create under Section 4 of the LSK Act.
The CJ Luncheon
Ahmednasir Abdullahi alleged that he was snubbed by Koome on Wednesday, July 14.
“Looks like the CJ in her first official engagement with the Senior Counsel Bar has removed me from an elective office and invited an imposter. Wise move for the CJ to cease and desist in interfering in Law Society of Kenya (LSK) issues,” Grand Mullah satirically remarked in a tweet that was retweeted by Havi.
Insiders at the party, however, detailed that he was invited along with all other SCs.
“As for the recent lunch hosted by CJ Martha Koome, all Senior Counsels were duly invited through Chair Fred Ojiambo on the SCB Whatsapp group, on which all SCs were joined. A few have since voluntarily left, including Ahmednasssir. Many confirmed attendance while several sent apologies for a variety of reasons.
“SCs are not children who have to be whipped to attend any function. It is all voluntary, but it is expected that members of the SCB, each one a leader in their own right, should appreciate the responsibilities that come with being conferred with the status of SC. It is certainly not for playing with on Twitter. All in all, the event was a great success,†sources privy to the matter stated.
Another Senior Counsel added that the Senior Counsel Bar is an autonomous body, created under the Advocates Act and remains committed to finding a lasting solution to the chronic problems facing the Havi led leadership of the LSK.
“As for the leadership of the SCB, at the appropriate time a proper, dignified, mature election will be held, notwithstanding the absence of rules, whereby all SCs will be invited and vote. The LSK President will certainly not be the convener or the returning officer for such an election.
“In the present case, Havi would do better by solving the complete and utter mess that is the LSK today and leave the SCB out of his agenda. As for Ahmednassir, as Chair of the Committee of Senior Council created by Havi, he should mediate the peace within the LSK Council, as all attempts by bona fide Senior Counsel mediators have so far failed,†concluded the Senior Counsel who spoke to kenyagist.com.
Havi and Ahmednasir did not respond to kenyagist.com when the publication sought their comment on the wrangles.
Source: KENYAGIST.COM
