Did lawyer assist Arturs to lie?
Questions now linger about Ngatia’s role in the Armenian’s saga
By HASSAN KULUNDU
Kenya Times
July 12 2006
In October 2003 when about 20 judges were dismissed from the Judiciary
on allegations of corruption and professional malpractice, it was
held that the purge on the Bench would be incomplete if it was not
extended to the Bar. The reckoning was, for every corrupt judge,
there is at least a corresponding corrupt advocate to complete the
equation. To this end, the Law Society of Kenya was also called upon
to purge its ranks of corruption by smoking out corrupt lawyers.
But commenting on the so-called radical surgery in the Judiciary,
Nairobi lawyer and author of the ‘Black Bar’, Paul Mwangi, said that
corruption would still thrive in Kenya’s judiciary despite the purge
because the legal profession in Kenya is devoid of any philosophical
essence.
Said he: "It means nothing to be an advocate of the High Court of Kenya
apart from having passed a law degree exam and done four months study
at the School of Law. The profession has no sense of ethic and has
not come up to be an integral part of industry, public administration
and social morality."
It is in view of the foregoing that we wish to analyse the actions of
one Nairobi lawyer, Fred Ngatia, and his relationship with the now
infamous Armenian brothers- Artur Margaryan and Artur Sargasyan. Mr
Ngatia has been named by a witness at the Kiruki commission as among
the people who organised a press conference addressed by the Artur
brothers at the Jomo Kenyatta International Airport’s VIP lounge.
Witnesses at the Commission now say that the press conference was
stage-managed by the Arturs’ handlers to dupe Kenyans into believing
that they had just arrived from Dubai on the morning of the media
briefing. On the contrary, it is said, the two had all along been in
the country.
If that testimony turns out to be true, then the most disturbing
thing would be that a lawyer offered his professional assistance to
dupe Kenyans. God forbid, because the Law Society of Kenya should
be gnawing its teeth over how one of their members could lend his
professional hand to such a misadventure that smacks of a threat to
national security. Before we look further into the role of Fred Ngatia
into this alleged charade, let us glean into the legal profession
itself and the rules of engagement that bind those who administer
it professionally.
The legal profession is the vocation based on the expertness in
the law and its application. This function is manifest in the work
of the advocate and the judge in the process of trying and deciding
cases. A lawyer as counsellor, is also an adviser and negotiator and
may help in shaping a transaction so as to avoid disputes or legal
difficulties or so as to achieve advantages for his client. Since the
Artur brothers have never been on trial in Kenya, it can be assumed
that Fred Ngatia was representing the alleged brothers in other
matters such as avoiding legal difficulties and or achieve certain
advantages for them on the day of the press conference.
In executing his tasks, a lawyer has several loyalties, including
loyalty to his client, to the administration of justice, to the
community, to his associates in practice and to himself. These diverse
and at times competing loyalties must be reconciled with wisdom. It
is the purpose of professional codes of practice to effect this wisdom.
As professionals, the choices and pursuits of lawyers are guided by
certain codes of conduct variably referred to as ‘professional ethics’,
‘legal ethics’ or ‘judicial ethics.’ These in essence are the rules of
conduct and precepts which legal practitioners, advocates or judges,
are required to adhere to in the course of executing the requirements
of their craft as well as extra-professionally while they remain in
the profession. They provide the norms, principles and values in terms
of which lawyers’ ethical conduct is judged in order to protect the
general public against professional misconduct.
The importance of and need for commitment to ethical values is
expressed by providing for sanctions against those who do not conduct
themselves according to the laid down principles. This state of
affairs points to the fact that absolute obedience to the rules of
the profession remains the ideal for pursuance by legal professionals
and an oath is taken as a promise and commitment to remain faithful to
the requirements of the profession. This is enforced by the provision
that, any conduct directed towards non-commitment to professional
values must for that matter face disciplinary action for professional
misconduct or unprofessional conduct.
In this regard, lawyers are required among other codes to represent
clients with utmost diligence and at the same time maintain the
honour and dignity of the profession. In view of these professional
requirements, Articles 2 and 6 of the 1988 edition of the International
Code of Ethics of the International Bar Association holds that,
lawyers shall at all times maintain the honour and dignity of their
profession. They shall in practice as well as in private life abstain
from any behaviour that may tend to discredit the profession of
which they are members, and that lawyers shall without fear defend the
interest of their clients without regard to any unpleasant consequences
to themselves or any person.
In view of the role played by lawyer Fred Ngatia in the press
conference at JKIA addressed by the Artur brothers, the question is,
assuming that Mr Ngatia was representing the legal interests of his
clients, did he know that the Artur brothers were out to dupe the
Kenyan public? If he knew, then this is a clear case of a lawyer
willingly and knowingly lending himself to the perpetuation of
a mischief.
If this was the case, where then was Mr Ngatia’s responsibility as a
lawyer in maintaining the dignity of the legal profession? And could
this be a case of professional misconduct?
This is however not to suggest that the Artur brothers have no right
to a lawyer, their abrasive character notwithstanding. But it is
something else all together when a lawyer willingly and knowingly
lends his professional services in commission of a crime- assuming
that the Arturs indeed stage-managed an arrival from Dubai on the
morning in question.
As it stands out now in view of the information known to the public,
it appears that Mr Ngatia chose to uphold fidelity to his clients’
course without regard to any unpleasant consequences and at the expense
of his loyalty to the Kenyan people. However, so long as it has not
been proved that the Arturs lied about their arrival from Dubai on
the morning in question, Mr Ngatia remains innocent.
But if it is established that they lied about the arrival and that Mr
Fred Ngatia knew about it, then the lawyer should ideally be censured
by the appropriate authority and punished accordingly if convicted
of taking part in the commission of a crime. And here again the Law
Society of Kenya should be wary about those members of the legal
fraternity who engage in improper acts to conceal the consequences
of clandestine activities.