A CASE AGAINST THE INTENDED LAW SOCIETY OF KENYA

ADVOCATES SOCIAL MEDIA USAGE CODE

By Prof. Tom Ojienda, SC (25th November 2020)

1. INTRODUCTION

This paper reviews the Law Society of Kenya (LSK) Draft Advocates Social Media
Usage Code (hereinafter also ‘the Draft Code’) recently prepared by the Council of
the Society (hereinafter also ‘the LSK Council’). The Draft Code is alleged ‘to give
guidance to Advocates on matters relating to the professional conduct and
use of social media platforms.’

However, it might be said, and rightly so, that social media usage by advocates is both
personal and professional depending on the context. The usage of social media by
advocates outside the official social media accounts, websites and web pages of their law
firms is largely a personal rather than a professional undertaking. Besides, advocates
restrict their official communications in the context of the advocate-client relationship
to official letters and emails to clients, opposing parties, opposing counsel, judicial
officers and the courts. Moreover, private social media accounts operated by advocates
may be categorized into two kinds, whereby some private social media accounts embody
the professional profile of advocates and some others embody the personal profiles of
advocates.

As a result, a blanket gagging of social media usage by advocates goes to the core of their
person as human beings and threatens their rights and fundamental freedoms
guaranteed in the Constitution of Kenya, 2010 (the ‘Constitution’).1 Far and

*LL.D. (University of South Africa), LL.M. (King’s College), LL.B. (UoN). Prof Tom Ojienda, SC is a
practising Advocate of the High Court of Kenya. He is a former chair of the Law Society of Kenya (LSK),
former President of the East African Law Society (EALS) and former Vice President and Financial
Secretary of Pan African Lawyers Union (PALU). He has also served as a Commissioner in the Judicial
Service Commission (JSC), Commissioner in the Truth Justice and Reconciliation Commission (TJRC)
established after the 2007-2008 post-election violence in Kenya, Chair of the Land Acquisition
Compensation Tribunal, and member of the National Environmental Tribunal. Currently, he is a Council
Member of the International Bar Association, Member of the Board of American Biographical Society,
Member of the Council of Legal Education, Member of the Public Law Institute of Kenya, Kenya
Industrial Property Institute, and Associate Professor of Public Law at Moi University.
Prof. Ojienda, SC has published over 40 articles and 15 books. The books include “Conveyancing: Theory
and Practice” published by T.O. Ojienda and A.D.O. Rachier, Faculty of Law Moi University; “Constitution
Making and Democracy in Kenya” edited by T.O. Ojienda ISBN: 9966-9611-3-6; “The Dawn of a New Era
2004” edited by Tom Ojienda, ISBN-9811-4-4; “A General Introduction to the New Law of the Sea”
Published by T.O. Ojienda and Kindiki Kithure; “The Legal Profession and Constitutional Change in
Kenya; Anti-Corruption and Good Governance in East Africa: Laying Foundations for Reform” edited by
Tom O. Ojienda and published by Law Africa Publishing (K) Ltd, Co-op Trust Plaza, 1st Floor, ISBN.9966-

Prof. Tom Ojienda, SC © 2020 1|Page

7121-1-9, 221 pages; “Conveyancing Principles and Practice” by Tom O. Ojienda and published by Law
Africa Publishing (K) Ltd, Co-op Trust Plaza, 1st Floor, 521 pages; ‘Conveyancing Principles and Practice’
by Dr. Tom O. Ojienda and published by Law Africa Publishing (K) Ltd, Co-op Trust Plaza, 1st Floor
(Revised edition); “Professional Ethics” by Prof. Tom Ojienda & Katarina Juma published by Law Africa
Publishing (K) Ltd, Co-op Trust Plaza, 1st Floor. (Revised Edition) 195 pages; “The Enforcement of
Professional Ethics in Kenya” (with Prof. Cox), Amazon Publishers, 2014; “Constitutionalism and
Democratic Governance in Africa” (with Prof Mbodenyi), pulp publishers, 2013; “Mastering Legal
Research” published by Law Africa, 2013; “Professional Ethics, A Kenyan Perspective” published by Law
Africa 2012; “Anti-Corruption and Good Governance in East Africa” published by Law Africa, 2007; and
“Conveyancing Theory and Practice” published by Law Africa, 2002.
Prof. Ojienda, SC’s published articles include: “Sustainability and The Ivory Trade. Whither the African
Elephant?” published in the 2002 issue of the East African Law Review; “Pitfalls in the Fight against
Corruption in Kenya: Corruption or Inertia?” in “Anti-Corruption and Good Governance in East Africa:
Laying Foundations for Reform” by T. O. Ojienda (eds) pages 95 – 131; “Exploring New Horizons in the
Discipline of Advocates, Towards a Review of the Existing Regime of Law” published in “The Advocate;
Learning Law by Doing Law: The Theoretical Underpinnings and Practical Implications of Clinical Legal
Education in Kenya”; and “An Inventory of Kenya’s Compliance with International Rights Obligations: A
Case Study of the International Covenant on Civil and Political Rights” the East African Journal of Human
Rights and Democracy Vol. 1, Issue No. 1, September 2003 at page 91-104; “Sectoral Legal Aid in Kenya:
The Case of the Rift Valley Law Society Juvenile Legal Aid Project”, published in various journals
including the Advocate, the Lawyer, and the Newcastle Law Bulletin; “Surrogate Motherhood and the Law
in Kenya: A Comparative Analysis in a Kenya Perspective”; “Polygamous Marriages and Succession in
Kenya: Whither “the other woman?”; “Reflections on the Implementation of Clinical Legal Education in
Moi University, Kenya” published in the International Journal of Clinical Education Edition No. 2, June
2002 at page 49-63; “Taking a Bold Step Towards Reform: Justifying Calls for Continuing Legal
Education and Professional Indemnity” published in Law society of Kenya Publication (2003);
“Terrorism: Justifying Terror in Kenya?” published in The East African Lawyer, Issue No. 5 at pages 18-
22; “Land Law and Tenure Reform in Kenya: A Constitutional Framework for Securing Land Rights”; “A
Commentary on Understanding the East African Court of Justice” published in the East African Lawyer,
Issue No. 6 at pages 52-56; “Where Medicine Meets the Law: The Case of HIV/AIDS Prevention and
Control Bill 2003” published in The Advocate at page 36-40; “The Advocates Disciplinary Process-
Rethinking the Role of the Law Society” published in The Lawyer, Issue No. 78 at pages 15-16;
“Ramifications of a Customs Union for East Africa” published in The East African Lawyer, Issue No. 4 at
pages 17-25; “Gender Question: Creating Avenues to Promote Women Rights after the Defeat of the
proposed Constitution” published in the Moi University Journal Vol. 1 2006 No.1, pages 82–92; “Of Mare
Liberum and the Ever Creeping State Jurisdiction: Taking an Inventory of the Freedom of the Seas”
published in the Moi University Journal Vol. 1 2006 No. 1, pages 105 – 131; “Legal and Ethical Issues
Surrounding HIV and AIDS: Recommending Viable Policy and Legislative Interventions” published in
The East African Lawyer, Issue No. 12 at pages 19-24; “Implementing the New Partnership for Africa’s
Development (NEPAD): Evaluating the Efficiency of the African Peer Review Mechanism” published in
the Kenya Law Review, 2007 Vol. 1, pages 81-119; “Protection and Restitution for Survivors of Sexual and
Gender Based Violence: A case for Kenya.” (with R. A. Ogwang and R. Aura) 90 Pages, ISSN:1812–1276;
“Legal and Institutional Framework of the TJRC - Way Forward” published in the Law Society of Kenya
Journal Vol. 6 2010 No. 1, pages 61 – 95; “A Critical Look at the Land Question in the New Constitution”
published in Nairobi Law Monthly, Vol. 1, Issue No. 1 of 2010 at pages 76 – 81; and a Book Chapter
entitled “Land Law in the New Dispensation” in a book edited by P.LO. Lumumba and Dr. Mbondenyi
Maurice.
As a robust litigation counsel, Prof. Ojienda, SC, has successfully handled numerous landmark cases at the
Supreme Court of Kenya, on Land and Environment Law, Electoral Law, Commercial Law, Family Law,
and other areas of law. Prof. Ojienda, SC represents various individuals, State agencies, private entities,
county governments and multinational agencies. He has represented these entities before Kenyan courts,
from the subordinate courts, all the way to the Supreme Court of Kenya. Some of his landmark cases at
the apex Court include, Independent Electoral and Boundaries Commission & 2 others v. Evans Kidero
(Petition 20 of 2014); Justus Kariuki Mate & another v. Hon. Martin Nyaga Wambora (Petition 32 of
2014); In the Matter of the National Land Commission - National Land Commission v. Attorney General

Prof. Tom Ojienda, SC © 2020 2|Page

above their professional standing in society, advocates are human beings with inherent
human rights and fundamental freedoms. No one is born an advocate but we are all
born human! It must not be forgotten that society is dynamic and keeps changing with
the times and so does the interface of human interactions and modes of communication.
Most of humanity’s social life in this age happens via the various social media platforms
and feeds into their personal lives and professional lives at the same time.

On top of that, LSK exists to protect advocates and not to curtail and diminish their
personal rights and fundamental freedoms.2 There are equally more pertinent issues
requiring the attention of the LSK Council rather than endeavours to make saints of
advocates and to frustrate advocates in their daily living and social lives. The Draft Code
achieves no purpose and merely amounts to over-legislation of the legal profession
which creates confusion in the profession and to the learned friends.

2. IMPLICATIONS OF THE LSK DRAFT ADVOCATES SOCIAL

MEDIA USAGE CODE

As noted in the introduction above, the Draft Code is intended to give guidance to
Advocates on matters relating to the professional conduct and use of social media
platforms. The Draft Code aims to regulate the interactions of LSK members, advocates,
by targeting their usage of the various social media platforms in their professional
capacity, in respect of the private and public content and comments posted through
their social media accounts. As a result, material and content drawn from social media
accounts of LSK members will be used during disciplinary proceedings whenever an
advocate is charged with professional misconduct and in assessing the suitability of LSK
members for nomination as members of statutory boards, tribunals, or offices.

& 5 others (Advisory Opinion Reference No 2 of 2014); Speaker of the Senate & another v Attorney-
General & 4 others [2013] eKLR; Lemanken Aramat v. Harun Meitamei Lempaka & 2 others [2014]
eKLR; Cyprian Awiti & another v. Independent Electoral and Boundaries Commission & 2 others [2019]
eKLR; Mohamed Abdi Mahamud v. Ahmed Abdullahi Mohamad & 3 others; Martin Wanderi & 106 others
v. Engineers Registration Board & 10 others [2018] eKLR; Moi v. Rosanna Pluda [2017] eKLR; Town
Council of Awendo v. Nelson O. Onyango & 13 others, among many others which are available at
www.proftomojiendaandassociates.com. Prof Ojienda, SC can be reached through
tomojienda@yahoo.com.
1 The freedom of conscience, religion, belief and opinion, the freedom of expression, the freedom of the

media, right of access to information, and the freedom of association under Articles 32 to 36 of the
Constitution, in that order.
2 Section 4(b), (h) and (i) of the Law Society of Kenya Act, 2014 (No. 21 of 2014) (LSK Act,

2014) obligates LSK to uphold the Constitution of Kenya and advance the rule of law and the
administration of justice; represent, protect and assist members of the legal profession in Kenya in
matters relating to the conditions of practice and welfare; and formulate policies that promote the
restructuring of the legal profession in Kenya to embrace the spirit, principles, values and objects the
Constitution of Kenya.

Prof. Tom Ojienda, SC © 2020 3|Page

The Draft Code attempts to create a ‘new’ form of professional misconduct
termed ‘inappropriate use of social media’; ‘Inappropriate use of social
media, particularly in a manner that undermines the standing, integrity
and dignity of the legal profession, amounts to professional misconduct.’
Yet, the said form of professional misconduct is not new and neither is it currently
unregulated as we will discover shortly. The professional misconduct, inappropriate use
of social media, would entail posts or comments made by advocates on the various social
media platforms: in relation to on-going proceedings before any judicial or quasi-
judicial tribunal; about clients, judges, courts, and opposing party or opposing counsel;
which disclose confidential information or personal data obtained from clients, judges,
and opposing party or opposing counsel; and which contain photographs that disclose
confidential information or personal data or parts of documents or files relating to a
client’s matter. Nice and safe as it sounds, these are aspects of the legal profession and
law practice that have already been legislated upon, especially in the Advocates Act, 3 its
subsidiary legislation,4 and the LSK Code of Standards of Professional Practice and
Ethical Conduct.5

3. SOCIAL MEDIA USAGE BY ADVOCATES IS ALREADY

LEGISLATED AND REGULATED

The Draft Code attempts to regulate the professionalism, advertising and solicitation,
the giving of legal advice, the making of false and misleading statements, and
confidentiality by advocates in their usage of the various social media platforms and the
social interactions between advocates and clients, opposing parties, opposing counsel,
judicial officers and the public. Unfortunately, legal provisions regarding professional
misconduct and offences by advocates, retainers, remuneration of advocates for legal
services rendered, the workings of the advocate-client relationship, perjury, the sub
judice rule, contempt of court prohibitions, and advertising and marketing by advocates
already exist in the Advocates Act and its subsidiary legislation, such as the Advocates
(Marketing and Advertising) Rules, 2014, and the LSK Code of Standards of
Professional Practice and Ethical Conduct, the Civil Procedure Act 6 and the attendant
Civil Procedure Rules, and the Penal Code and the attendant Criminal Procedure Code. 7

The Advocates Act8 regulates the professionalism of advocates in a myriad of ways

including the interactions between advocates and their clients, opposing parties,

3 Cap. 16, Laws of Kenya.

4 Such as the Advocates (Marketing and Advertising) Rules, 2014.
5 See Gazette Notice No. 5212 of 2017, published on 26 May 2017
<http://lsk.or.ke/Downloads/Gazette%20Notice%20Law%20Society%20or%20Kenya.pdf>.
6Cap. 21, Laws of Kenya.
7Cap. 63, Law of Kenya.
8 Cap. 16, Laws of Kenya.

Prof. Tom Ojienda, SC © 2020 4|Page

opposing counsel, judicial officers, courts and the public. Part VIII (sections 31 to
43) of the Advocates Act entails provisions pertaining to offences by advocates.
In particular, sections 36 and 38 of the Advocates Act prohibit advocates from
undercutting and touting, respectively. Further, the Advocates (Marketing and
Advertising) Rules, 2014 prescribes rules on advertising and marketing of legal
services and law practice by advocates. In addition, Part IX (sections 44 to 52) of
the Advocates Act regulates the remuneration of advocates for legal services
rendered—through agreements on fees and the various scales of remuneration under the
Advocates (Remuneration) Order. In that regard, advocates are subject to the
Advocates Complaints Commission, 9 the Advocates Disciplinary Tribunal (including
regional disciplinary tribunals),10 and the Civil and Criminal Courts for acts, omissions
and conduct constituting professional misconduct and offences and the resulting
professional, civil and criminal liabilities. Moreover, by virtue of section 56 of the
Advocates Act, the courts also have powers to discipline advocates for misconduct and
offences committed during, or in the course of, or relating to, proceedings before the
Chief Justice or any judge, including acts, omissions and conduct constituting contempt
of court.

By virtue of section 60(1) of the Advocates Act, professional misconduct includes

disgraceful or dishonourable conduct incompatible with the status of an advocate.
Nonetheless, by virtue of sections 53(4)(e) and 60(3) of the Advocates Act, not
all conduct by an advocate or firm of advocates constitutes a disciplinary offence or
professional misconduct.

The LSK Code of Standards of Professional Practice and Ethical Conduct 11

(also ‘Code of Standards’ or ‘SOPPEC’)) also sets standards on professional practice
and ethical conduct by advocates. The Code of Standards distinguishes ‘professional
misconduct’ under section 60(1) of the Advocates Act with ‘unsatisfactory
conduct’. On the one hand, professional misconduct entails conduct that is in breach of
the rules, standards and ethics of the legal profession found in various legal texts such as
the Advocates Act and the attendant rules, regulations, and orders in its subsidiary
legislation, and standards and guidelines issued by LSK. 12 On the other hand,
unsatisfactory conduct is ‘conduct which falls below the standard of conduct or
behavior that is expected of a practicing Advocate, particularly when rendering legal
services. It is conduct which falls below the standard one may reasonably expect of a

9See ibid, ss 53-54.

10See ibid, Part XI, ss 55 to 80.
11Through the exercise of powers conferred under sections 4 and 5 of the Law Society of Kenya Act,

2014 (No. 21 of 2014) (LSK Act, 2014), LSK published the Code of Standards of Professional Practice
and Ethical Conduct on 26 May 2017, vide Gazette Notice No. 5212 of 2017. The The standards were
adopted by the LSK Council on 13 June 2016 and pursuant to section 16(1) of the LSK Act, 2014 were
thereafter approved at the Annual General Meeting of members held on 11 March 2017.
12LSK Code of Standards of Professional Practice and Ethical Conduct, para 12.

Prof. Tom Ojienda, SC © 2020 5|Page

practicing Advocate in terms of competence or unbecoming behavior (i.e. behavior not
becoming of an Advocate but occurring outside of the context of legal practice).’ 13 As
such, the Code of Standards is an authoritative standard, guide and reference point in
determining whether the conduct of an advocate amounts to professional misconduct or
unsatisfactory conduct, and what is or is not professional misconduct that is amenable
to disciplinary proceedings.14

Among the overriding principles of professional practice and ethical conduct

elucidated in the Code of Standards are professional independence, honesty and
integrity, conflict of interest, fidelity of the law, advocate-client
confidentiality, professionalism, remuneration and the lawyer in the
society.15 Each of the overriding principles addresses one or more aspects of the
advocates’ professional and personal (outside) lives that the LSK Draft Advocates Social
Media Usage Code intends to regulate.

The Code of Standards equally provides twelve (12) standards of professional

practice and ethical conduct (SOPPEC) that govern the practice and conduct of
advocates, the breach of which constitutes professional misconduct and attracts
disciplinary proceedings.16 The twelve (12) standards relate to advertising and
marketing,17 competence and diligence in client care, 18 professional fees,19
conflict of interest,20 confidentiality and advocate-client privilege, 21 fidelity
to the law and due process,22 outside interests,23 and honesty and
integrity.24 SOPPEC-10 is particular to social media usage by advocates and
provides that:
Inappropriate use of social media, particularly in a manner that
undermines the standing and dignity of the legal profession, is
professional misconduct. Material and content drawn from social
media sites may be taken into account by regulatory authorities in
dealing with a charge of professional misconduct. 25

Consequently, SOPPEC-10 and the entirety of the twelve (12) standards of

professional practice and ethical conductand the overriding principles of

13 ibid, para 13.

14 ibid, paras 14-16.
15 ibid, para 21.
16 ibid, paras 22 and 23.
17 SOPPEC-2.
18 SOPPEC-3.
19 SOPPEC-4.
20 SOPPEC-6.
21 SOPPEC-7.
22 SOPPEC-8.
23 SOPPEC-11.
24 SOPPEC-12.
25 See also LSK Code of Standards of Professional Practice and Ethical Conduct, paras 135-139.

Prof. Tom Ojienda, SC © 2020 6|Page

professional practice and ethical conduct are sufficient in guiding advocates in
their usage of social media. As such, the intended LSK Advocates Social Media Usage
Code standing by itself is not necessary and amounts to over-legislation of the
profession. A guidance note on SOPPEC-10 would be a workable alternative to the
intended Advocates Social Media Usage Code.
4. THE DRAFT LSK ADVOCATES SOCIAL MEDIA USAGE
CODE OFFENDS THE RIGHTS AND FUNDAMENTAL
FREEDOMS OF ADVOCATES

Other than regurgitating already existing legal provisions, the Draft Code equally runs
contra the rights and fundamental freedoms of advocates guaranteed in the Constitution
of Kenya. The Bill of Rights in Chapter Four of the Constitution of Kenya
guarantees to every person including advocates the freedom of conscience, religion,
belief and opinion, the freedom of expression, the freedom of the media, right of access
to information, and the freedom of association under Articles 32 to 36 of the
Constitution, in that order. Advocates are human beings with personal lives, opinions,
beliefs and preferences separate from their professional lives. Advocates cannot be legal
professionals in every setting and every sphere of their lives.

Moreover, Principle 23 of the United Nations Basic Principles on the Role of

Lawyers26 provides for the freedom of association for lawyers and states that,
‘Lawyers like other citizens are entitled to freedom of expression, belief,
association and assembly. In particular, they shall have the right to take
part in public discussion of matters concerning the law, the
administration of justice and the promotion and protection of human
rights and to join or form local, national or international organizations
and attend their meetings, without suffering professional restrictions by
reason of their lawful action or their membership in a lawful
organization. In exercising these rights, lawyers shall always conduct
themselves in accordance with the law and the recognized standards and
ethics of the legal profession.’

In the particular case of social media usage by advocates, the personal lives and
professional lives of advocates may unconsciously amalgamate and intertwine. In that
case, the provisions of the Advocates Act and its subsidiary legislation, the LSK Code of
Standards of Professional Practice and Ethical Conduct, the Civil Procedure Act, 27 the

26 Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of
Offenders, Havana, Cuba 27 August to 7 September 1990
<https://www.ohchr.org/EN/ProfessionalInterest/Pages/RoleOfLawyers.aspx>.
27Cap. 21, Laws of Kenya.

Prof. Tom Ojienda, SC © 2020 7| Page

Civil Procedure Rules, 2010, the Penal Code, 28 the Criminal Procedure Code,29 the
Evidence Act,30 and other relevant laws offer sufficient legal provisions, restrictions and
rules for advocates to keep off from professional misconduct, illegalities and criminal
acts and omissions prescribed and punished therein accordingly. Therefore, there is no
need for any purported advocate social media usage code that is broad, baseless and
merely regurgitative.

5. A COMPARATIVE OUTLOOK

The International Bar Association’s (IBA) International Principles on Social

Media Conduct for the Legal Profession 31 entails six principles regarding the
interface of social media usage by legal professionals and the need to protect the basic
tenets of the legal profession within the social media space. The six principles relate to:
1) the professional independence of legal professionals in providing legal advice and
legal representation; 2) the integrity of legal professionals in their social media relations
among themselves and with judicial officers; 3) responsible use of social media by legal
professionals; 4) confidentiality, especially through the use of the various privacy
settings that accompany the various social media accounts; 5) maintenance of public
confidence in the profession within the social media space; and 6) the use of social
media policies by each law practice firm to guide their employees accordingly.

It is notable that the IBA International Principles on Social Media Conduct for
the Legal Profession aim to guide legal professionals on how to abide by the tenets of
the legal profession as they use the various social media platforms. In like manner, since
the inappropriate use of social media is already a professional misconduct in itself,
SOPPEC-10, the LSK Council should aim to guide advocates in avoiding the said
professional misconduct and not to create further illegality from what is already illegal.

A case in point is the Law Society of South Africa’s ‘Introduction to Social

Media - Legal Implications for South African Law Firms: LSSA Guidelines’ 32
that states categorically that, ‘By its nature the guideline is general, not
exhaustive, and intended as a starting point to guide attorneys in the
effective management of social media. This guideline is not intended and

28Cap. 63, Law of Kenya.

29 Cap. 75, Laws of Kenya.
30 Cap. 80, Laws of Kenya.
31 Adopted 24 May 2014 by the International Bar Association <file:///C:/Users/PTO&A/Downloads/IBA-

Int-Principles-on-Social-Media-Conduct.pdf>. See also

<https://www.ibanet.org/Committees/Divisions/Legal_Practice/Impact_of_OSN_on_LegalPractice/Im
pact_of_OSN_Home.aspx>.
32 See <https://www.lssa.org.za/wp-content/uploads/2019/12/LSSA-Introduction-to-Social-
Media_Legal-Implications-for-SA-Law-Firms-and-draft-policy-December-2012.pdf>; and
<http://www.saflii.org/za/journals/DEREBUS/2013/5.pdf>.

Prof. Tom Ojienda, SC © 2020 8|Page

must not be construed as establishing any legal obligation. Neither is the
guideline intended, nor must it be construed, as providing legal advice.’

The Law Society of South Australia’s Guidelines on the Ethical Use of Social
Media by Legal Practitioners33 also states categorically that, ‘The purpose of
these Guidelines is to provide practitioners with a starting point for
seeking general information about their professional obligations. They
are not an exhaustive statement of all the relevant professional
obligations that might apply to specific circumstances. These Guidelines
are not intended to, and do not, replace or amend a legal practitioner’s
obligations under the Australian Solicitors’ Conduct Rules.’

In light of the foregoing, the LSK Council should aim for a guidance note on social
media usage by advocates that aligns with the advocates professional, civil, and criminal
obligations in various legal texts applicable to advocates as professionals and as human
beings.

6. CONCLUSION

There are a number of reasons why the Code has to be trashed. One, the Code is
unconstitutional so far as it interferes with the rights and fundamental
freedoms of advocates guaranteed under the Constitution of Kenya, 2010—in
particular the freedom of conscience, religion, belief and opinion, the freedom of
expression, the freedom of the media, right of access to information, and the freedom of
association under Articles 32 to 36 of the Constitution, in that order. Two, the
Code is ineffective and useless as it neither creates any new offence(s) nor acts
constituting professional misconduct—inappropriate use of social media is already a
professional misconduct in itself, SOPPEC-10. Three, the Code is unnecessary in view
of the already existing legal framework under the Advocates Act and its subsidiary
legislation, the LSK Code of Professional Practice and Ethical Conduct and
other relevant legal texts on civil and criminal law practice touching on various aspects
of the legal profession implicated in the usage of the social media.

The alternative is for the LSK Council to work on guidance notes that juxtapose social
media usage by LSK members and the provisions in the Advocates Act and its subsidiary
legislation, the LSK Code of Standards of Professional Practice and Ethical Conduct and
all enabling laws. In any case, any supposed code, guidelines, guidance notes or rules on
social media usage by advocates should uphold rather than undermine the rights and
fundamental freedoms of advocates under the Constitution of Kenya, 2010 and must

33 See
<https://www.lawsocietysa.asn.au/pdf/EP_Guidelines%20on%20the%20ethical%20use%20of%20social
%20media%20by%20legal%20practitioners.pdf>.

Prof. Tom Ojienda, SC © 2020 9|Page

align with the Advocates Act and the LSK Code of Standards of Professional Practice and
Ethical Conduct. On a lighter note though, the LSK Council should catch up with the
current trends in humanity’s social life—who are advocates without Twitter, Facebook,
LinkedIn, Instagram,WhatsApp, YouTube and other social media accounts!

Finally, by virtue of section 81(1)(a) of the Advocates Act, the LSK Council, under
the leadership of the LSK President, is empowered to make rules with regard to the
professional practice, conduct and discipline of advocates. Moreover, pursuant to
section 81(2) of the Advocates Act, failure of advocates to comply with rules made
by the LSK Council pursuant to section 81(1) of the AdvocatesAct may attract
disciplinary proceedings against them before the Advocates Disciplinary Tribunal.
Nonetheless, any such rules assume legal effect only upon approval by the Chief Justice,
which is yet to happen as concerns the purported LSK Draft Advocates Social Media
Usage Code. Further, pursuant to section 16(1) of the LSK Act, 2014, the general
meeting of members of the society must approve all resolutions and important decisions
of the Society as the supreme authority of the Society.

Prof. Tom Ojienda, SC © 2020 10 | P a g e