BY SAM ALFAN.
A showdown is looming between lawyers and the police over the move by Director of Criminal Investigations (DCI) to summon former Interior Cabinet secretary Fred Matiang’i and his lawyer Danstan Omari.
Lawyers through their umbrella body the Law Society of Kenya have fired the first shot arguing that the summoning of Omrai to record statement amounts an intimidation and in violation of lawyers-client privilege.
The LSK, Nairobi branch vowed to defend Omari and termed the summons as intimidation.
“The Law Society’s attention has been drawn to the summons issued to Danstan Mogaka Omari Advocate, compelling him to appear before the Directorate of Criminal Investigations situated along Kiambu Road at Mazingira House on the 22nd day of February, 2023, at 9:30 a.m. without fail,” says LSK.
LSK President Eric Theuri also said Omari is an active and good standing member of the LSK.
“As an advocate, he owes a duty to zealously and fearlessly defend the interests of his clients, regardless of their status or interests and while discharging this duty, the role of the advocate should be appreciated to avoid associating the advocate with his client,” he said.
The LSK boss said Articles 16(c), 17 and 18 of the United Nations Basic Principles on the Role of Lawyers require that advocates be protected from any threats of prosecution or adverse sanctions for any action taken in accordance with recognized professional duties, standards, and ethics.
Furthermore, as a result of performing their duties, advocates should not be identified with their clients or their clients’ causes.
“We affirm our position that lawyer Danstan Omari, should not be the subject of investigations since he was only discharging his mandate as an advocate.
He said the Law Society is statutorily mandate to protect and assist members of the legal profession in matters relating to conditions of practice and welfare.
“Towards this end, taking into account the magnitude of the case, it has been resolved that the President of the Law Society of Kenya to accompany Danstan Omari Advocate to attend to his summon, so as to get full details and disclosure of the nature of the summons,” says LSK.
In a letter to Omari, Michael Sang, a senior Superintendent of Police, directed the to appear before him at DCI headquarters without fail.
Sang says he is investigating allegations of publication of false information amongst other offences in regard to the alleged invasion and raid of the residence of Dr Matiang’i, a former Interior Cabinet Secretary, on 8th and 9th February by “a battalion of police officers”.
The detective claims that Omari, who is one of the lawyers representing Matiang’i is connected to the offence or has information which can assist him in his investigation.
The officer further notes that should Omari fail to appear before him, he is liable for prosecution.
However, some are concerned about the advocate/client privilege because the knowledge acquired by the advocate while acting for a client should be treated as confidential and should not be disclosed to anyone without the client’s consent.
Lawyer Peter Wanyama has advised lawyer Omari to obey the summons but write a one-line statement that “In respect of your summons and on the advice of my counsel, I have nothing to tell you.”
“We should never allow the police to come into our space. Rule of law is sacrosanct. Senior Superintendent Sang of DCI needs some little bit of education on the work of an advocate. As lawyers, we are trained to take on cases and represent even the most condemned. It will kill the practice of law if the police are allowed to intimidate advocates,” posted lawyer Wanyama.
Lawyer Wanyama added that this is partly one of reasons why lawyers obtained court orders to suspend the law that makes advocates as ‘State reporting agents’, he said.
“The law can be used to target lawyers who are deemed anti-government. As you can see DCI folks are not schooled in the basics of legal practice,” he said.
