By Anthony Atata
The legal profession in Africa is endangered on many fronts. On the 2nd of July 2020, a Nigerian bank took a full page advert in a National newspaper worth about $1300 and boldly invited the Nigerian public to get legal advice for their businesses.
This could be the most audacious incursion into the legal profession in Nigeria. The ad unsettled the Nigerian legal community and they responded spontaneously in what seemed like a hostile takeover.
In response to the ad, the Nigerian Bar Association, through its Section on Legal Practice, asked the bank to withdraw the newspaper publication which offered to give legal advice to small and medium scale business owners and other members of the public.
This will not be the first time a financial institution in Nigeria will attempt such incursion into a profession fighting on all fronts to protect its territory.
Few years ago, another financial institution put out a similar notice and was met with a spontaneous uproar from the legal profession. The audacity with which the advert of July 2nd was put out showed that the financial institutions were not cowed when lawyers challenged the first bank. There is no doubt that it will happen again, perhaps, in another guise. The banks are not the only ones seeking to take a bite of the cherry. The threats to the profession come from different quarters; even from within.
A day after the Newspaper advert in Nigeria, a Kenyan journalist lost his job. Few days later, Ken Mijungu ,who studied law but never qualified to practice law, revealed in a tweet that he has started the Ken Mijungu Legal Consultancy Firm.
According to him, the firm offers consultancy services to Kenyans on buying and selling property, immigration, imports and exports of goods.
Of course, as expected, the legal community in Kenya did not take it lying low. This has generated a lot of debate in Kenya.
Mr Mijungu has insisted that he will only advice and not litigate, but many lawyers in Kenya still believe that he still runs foul of the rules if he does. Mijungu on his part is showing no sign of backing down. The most important question here is: Is Ken Mijungu on the wrong side of the law?
Simiyu Kuloba, a Kenyan Lawyer, said that Practicing as a legal consultant amounts to Law practice and one cannot give a valid professional legal opinion unless he or she is an advocate and in ‘good standing’. Mr Kuloba said that, exemptions are in the law with respect to taking out an annual practising certificate. The requirement to be an advocate, and the taking out of practising certificate are tools of quality control and quality assurance in the provision of legal services. This is the hallmark of a profession.
According to George Omwansa responding to queries from Courtroom Mail in a chat, the provisions of section 33, 34, 35 and 85(1) of the Advocates Act of Kenya shows that Ken Mijungu is on the wrong side of the law; this is the popular view among lawyers in Kenya.
However, Faith Jappanne Mutua, another Kenyan advocate who runs her own consultancy, is in the center of the cross fire in defence of Mr Mijungu. In a telephone conversation with Anthony Atata, she canvassed a strong position of law for Mr Mijungu. Mutua said that Mr Mijungu is not offering any of the services provided in section 34 of the Advocates Act, so, he cannot be said to be in breach of any section of the Advocates Act. She believes that lawyers are putting territorial interest above a candid application of law. She also pointed out that the Constitution of Kenya under Articles 156 and 166 for instance does not require that one be an advocate to serve as the Attorney-General or Chief Justice of Kenya.
That in fact, the Attorney General, who may not necessarily be an advocate, is nonetheless designated as the Titular Head of the Kenyan Bar.
Should such people retire and choose to start legal consultancies, themselves never having been called to the bar, would it be in breach of any law just because they are not Advocates? According to her, what the Constitution requires is among other things, 15 years experience in a legal field, meaning the person will have been doing legal work without necessarily being an advocate. In view of that, it can be said that the Constitution anticipates that law graduates can perform some legal duties- which were not spelt out in the Advocates Act- and that is what Mijungu is doing.
Whichever way it goes, one thing will remain constant, at least for now; the legal profession is under attack on all fronts from different interests.
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Technological disruptions, pandemics, quacks, government agencies and even lawyers who make themselves available to be used in the processes are some of the threats to the profession.
Law societies and Bar associations are taking steps to curb this but their steps are not assertive enough. Themes bordering on the threats to the legal profession have been used in conferences, workshops, seminars, etc, but most times no one follows up until the next conference is organised on the same subject.
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The profession may not exist as it is now in the next 100 years. Whether it spells gloom or doom is dependent on what the profession does today to safeguard itself. It may become useless as easier and faster ways of dispute resolution emerge and artificial intelligence takes over the job of the solicitor. It may still remain useful if the profession succumbs to a little to change.
Another stifling aspect of the profession is the regulation on advertising. The writer believes that the regulation should continue with fewer restrictions.
In Nigeria and other commonwealth countries, lawyers are allowed to have a website, get their names and that of their law firms into directories and listings but more needs to be done especially in the area of encouraging a little flamboyance in how lawyers and law firms brand themselves.
In Africa, there is a poor knowledge of what lawyers actually do. Many see lawyers from the narrow prism of Courtroom practice. This must change. This is what the bar associations/ law societies should face. A robust education of the populace on the role of lawyers. This is what the banks in Nigeria are doing. Educating their customers on the need for legal services and offering those services. That is also what many quacks do with a touch of flamboyance.
The threats will continue to be there. For the profession to be saved, lawyers must step up boldly to overhaul the rules of professional conduct, opening it up a bit to accommodate modern realities. It must also encourage revolutionary changes in the administration of Justice, ease of doing business and total integration of information technology in all aspects of legal service. In this way, the services of quacks will become less attractive.
Anthony Atata is the Co- Chair, International Bar Association- Africa Regional forum and the founding editor of Courtroom Mail.
