BY SAM ALFAN.
The Law Society of Kenya has challenged a decision by the Supreme Court to bar Senior Counsel Ahmednasir Abdullahi and his law firm from appearing before it over endless attacks on Judges and the Judiciary.
LSK argues in the petition that if the decision is not set aside, it will set a bind precedent to lower courts.
“The decision, unless set aside, will set a binding precedent in the lower Courts in punishing advocates whose personal opinions the Courts do not agree with,” LSK said in the petition.
LSK argues that veteran lawyer Ahmednasir and his law firm have briefs to appear before the Supreme Court and will be getting new briefs, and unless the Orders are granted, the Petition will be rendered nugatory.
Ahmednasir was scheduled to represent one of his clients on Tuesday but six judges of the apex court recused themselves from the case.
The judges later advised the client to seek an alternative counsel to represent them or argue the case personally.
The LSK says the decision affects a client’s right as consumers under Article 46 1(a and c) of the Constitution and their selecting an advocate of his choice.
Further, it affects a client’s non- deragable right to a fair trial and justice under Article 48 and 50 of the Constitution, due to changing advocates midstream and the financial implications likely to accrue.
“Ahmednasir therein, is the Ahmednasir’s Client and a lady of 93 years of age, whose right to fair bearing and a counsel of her choice, have been violated and continue to be, by the decision of 18 January 2024,” the petition reads.
The lawyers’ body wants the case heard as a matter of urgency arguing that the Senior Counsel and advocates in his law firm are duly licensed by the society, and they will continue to suffer irreparable violation to their Constitutional rights and freedoms.
The legal profession body says that the decision, unless set aside, will set a binding precedent in the lower Courts in punishing advocates whose personal opinions the Courts do not agree with.
“Unless the Application is certified urgent and ex-parte orders issued, Advocates of the High Court of Kenya may no longer exercise their freedom of expression and opinion, right to demonstrate and associate, without the apprehension of a similar decision. meted upon them, without a fair hearing and the right to be heard,” adds LSK.
According to LSK, Supreme Court decision was procedurally improper and unfair because it was made and issued arbitrarily, lacking any semblance of proper procedure or adherence to the legal foundations of a democracy and any statutory foundation that justify the Supreme Court and Court registrar’s authority to make and issue such a decision.
The apex court has not shown that it has carried out any independent investigations to discredit the allegations contained in the purported Ahmednasir’s publications and it was made and issued arbitrarily without affording the veteran lawyer, persons acting and to act under his instructions, Ahmednasir law firm and its employed Advocates and their clients the opportunity to be heard.
The letter communicating the decision did not disclose the manner in which the decision was reached, contrary to Article 8 of the Supreme Court Act which stipulates that a decision by the Supreme Court is by a majority.
“Contrary to the fundamental principles of transparency and accountability, enshrined under Article 10 (2)(c) of the Constitution of Kenya, the Supreme Court rendered the decision without providing details of what led to the Court’s arrival of the decision, how the agenda for the meeting was set. deliberations and where it was held,” argues LSK.
The Supreme Court did not afford the Ist Interested Party, persons acting under his instructions, the Ahmednasir’s law firm and its employed Advocates; the opportunity to show cause why such a decision ought not to be made and the publications complained of were made by him in his personal capacity but the decision of the Court affects third parties.
“Based on the foregoing, as delineated in paragraphs and collectively, the decision is unconstitutional, contra-statute, unlawful and is fraught with illegality and this Court has Jurisdiction to hear and determine this Application and the Substantive Petition, ” says lsk.
The Supreme Court decision, in its entirety is irrational and unreasonable for the reasons that and the Supreme Court of Kenya failed or neglected to afford the Advocates an opportunity to be heard, contrary to its raison d’etre to promote the principles of the Constitution, to hear and to administer justice.
The Supreme has a unique role in that it is supposed to be better qualified than any other Court to assess any restrictions on freedom of expression necessary in a democratic society.In this unique role, it failed to consider the catastrophic nature and potential impact the decision would have on the legal practice and the potential of other Courts taking a similar restrictive view.
“The sanction meted upon Ahmednasir, persons acting and to act under his instructions, his firm and its employed Advocates was disproportionate and manifestly harsh without any rational, legal or statutory foundation, The sanction patently falls outside the range of the statutorily provided sanctions under, inter-alia: the Advocates Act, Supreme Court Act and the Supreme Court Rules, ” says LSK.
