The Number of Guns In The World Legal or Otherwise Has Hit A Billion:The Insecurity Dialogue Must Now Go Beyond Our Security Forces :

“Our commitment to constitutional principles has weathered every war, and every war has come to an end. – Homegrown extremism is the future of terrorism. –Our response to terrorism cannot depend on military and law enforcement alone. We need all elements of national power to win a battle of wills, a battle of ideas."-President Barrack Obama.



The single greatest threat to the economy of this great country, Kenya, and the very existence of the nation is insecurity brought about by repeated and petrifying terrorist attacks. This insecurity is not brought about by terrorism alone, but also due to poverty and gun violence. The April 2015 issue of the Newsweek reported that there are now nearly a billion guns in the world, meaning that there is one gun for every seven people. We may not immediately estimate the distribution of guns in Kenya, but what is clear is that there are very many guns in wrong hands.

The Government has invested substantial resources and energy to counter the runaway insecurity. How we collectively (as a nation) deal with the menace shall shape our country’s destiny. Resonating with the above words by the Presidentof the United States of America Barack Obama, it will be naïve for anyone to imagine that our security forces are the only solution to the enigma of insecurity. A robust and reasoned national debate and dialogue may go a long way in addressing the subject of insecurity.

The Law Society of Kenya is a repository of a wealth of legal and human resource. It prides itself of social scientists capable of helping the government shape a discussion on various efforts and strategies to combat insecurity. I therefore urge us to start ruminating and examining this question of insecurity. Security Laws (Amendment) Act 2014 Informed or misinformed by failed attempts to contain insecurity (especially on terrorism) in the year 2014, the Government amended various statutes touching on security by way of enactment of The Security Laws (Amendment) Act 2014.

Law Society of Kenya (LSK) President Mr. Eric Mutua, OGW addressing
members during the Annual General Meeting in March 2015

Following a court process, some of the provisions of the said law were declared unconstitutional hence null and void. The acrimonious parliamentary process of enacting the said law and the highly contested court proceedings and decisions is testimony of the competing social-legal interests and dynamics of the State’s obligation and desire to maintain security on one hand and protection of individual freedoms on the other. This conflict of ideology has lived in society since the later Middle Age, but it is a discourse that is relevant today as it was then. It is for this reason that the Council of the LSK has deemed it imperative to theme this year’s Annual Conference as “INSECURITY AND THE RULE OF LAW”. I have no doubt in my mind that the Government will benefit from the thoughts arising out of the robust discussion expected in the conference.

Criminal defence lawyers, prosecution counsels and the courts have a duty and a great role to
play in the equilibrium of safe guarding constitutional principles without unnecessarily emasculating
the State in its efforts to arrest insecurity.As we advance various positions, let us learn from the words of Justice William Young of the United States of America in his Judgment while sentencing Richard Reidin March 2013. Richard Reid, aterrorist and a British citizen, had attempted to detonate a bomb while aboard a US plane by use ofa fuse implanted on his shoe. The
judge had this to say:

“What your able counsel and what equally able United States Attorneys have grappled with and what I have honestly tried to grapple with, is why you did something so horrific. – I have an answer for you. It may not satisfy you. –You hate our freedom.Our individual freedom. –It is because we prize individual freedom so much that you are here in this beautiful courtroom. – It is for freedoms’sake that your lawyers are striving so vigorously on your behalf and have filed appeals. We care about it. Because we all know that the way we treat you, Mr Reid, is the measure of our own liberties. Make no mistake though. It is yet true that we will bear any burden; pay any price, to preserve our freedoms.”

Case Backlog
This Dispatch will be incomplete without addressing (in brief) two issues on practice of law. Many lawyers and litigants have raised concerns over the ongoing efforts by the Judiciary to clear case backlog in the Justice@Last Initiative (dismissal of old cases). In my view, this is a step that must be embraced by the profession. The cases which are being dismissed are the ones where parties have lost interest in prosecuting or have died.
Unless we take measures towards eradicating the possibility of those cases taking up space in our daily Cause Lists, then the chances of achieving the goal of an expedited dispensation of deserving and “live” matters will be diminished. We all strive to achieve the ideal situation where cases are prosecuted within six months from the date they are filed.

This may not be realized if we do not reduce the time taken by judges in dealing (by adjourning)
those old matters. This is not to mean that I do not agree with the concerns that have so far been raised to the effect that adequate notices ought to be given to both the litigants and the advocates before such drastic measures are taken.

National Assembly Leader of Majority Party Hon. Aden Duale opening the
LSK Annual Conference at Leisure Lodge Resort last year.

We had proposed to the Judiciary that service of notices be undertaken by way of
advertisement in the newspapers. Their response was that advertisement was a very
costly exercise and further that not all people have access to newspapers. Similarly, the Judiciary explained the difficulties that it faced in sending out Notices To Show Cause to each party and advocate involved. The compromise position that was arrived at was that the notices would appear in the websites of the Judiciary, LSK and Kenya law.

Annual General Meeting

I will not write much about the events of the aborted Annual General Meeting (AGM) last
March since some of the issues are under active litigation. Without apportioning blame, allow me to say that what transpired in that meeting was traumatizing. Any lawyer who desires to see the progression of a great legal profession and upholds the ethos of the
calling must condemn those deeds of a few of us.

As lawyers, we must learn and practice the art of disagreeing in a civil manner. The following conduct and words of President Obama should be our guiding principle. While he was delivering a speech at the National Defense University in Washington DC on 23rd May 2013, Obama was repeatedly interrupted (nine times) by one agitated lady
from the civil society.

In every interruption, the President would plead with her to let him stick to the written speech and to let him finish, but she could hear none of that. On the ninth interruption,
the President chose to address her as follows:
“Now ma’am, let me finish. Let me finish ma’am. Part of free speech is you being able to speak, but also, you listening and me being able to speak.”

I hope in any future meetings we shall all endeavor to allow
each other time to speak and to conduct ourselves with decorum. That is what the noblest of professions demands of us.




Erick Mutua OGW
President LSK