ADVOCATES HAVE RIGHT TO DEFEND EVEN DEVILS
Story By Peter Mwaura | Fair Play
Daily Nation , Kenya
Sept 8 2006
One of the issues that arose during the Kiruki Commission of Inquiry
into the Armenian brothers’ saga was how far an advocate can go to
defend a person widely perceived to be a criminal. Lawyer Gibson Kamau
Kuria was particularly emphatic that it was his professional duty to
defend even "the devil" (when it appeared to some people like he was
defending the Armenians).
Dr Kuria was grappling with an age-old question that seems to confuse
the public: Should lawyers defend bad people? The question has been
contagious, now and in the past. Recently six MPs in western Kenya
warned lawyers not to represent suspects charged with the brutal
murder of six people in Nyamira District.
The Kenyatta and Moi regimes went even further: they blacklisted
lawyers who defended "dissidents" or politically incorrect individuals
or causes and denied them parastatal work, which was a lucrative
source of income for most lawyers.
English peasant revolt
The idea that a lawyer who defends an unpopular person is himself bad
is widespread and historical. The 1997 movie, "The Devil’s Advocate",
popularises this "dark side" of law and the notion that lawyers are
purveyors of evil rather than good. Shakespeare summed up this in his
famous line in King Henry VI, Part 2, when the leader of an English
peasant revolt suggested: "The first thing we do, let’s kill all
the lawyers."
The reason people hate lawyers who defend unpopular individuals or
causes is that people tend to think that right is on their side and
wrong on the other side. They tend to think that when a person is
accused of a crime he is immediately guilty. They do not respect the
presumption of innocence.
Such attitudes show that the public does not understand the role of
lawyers. When lawyers defend bad people the public thinks of them as
"devil’s advocates." Lawyers, truly, are devil’s advocates but they
do not work for the devil. Their job is to zealously guard the legal
rights and interests of their clients.
A devil’s advocate is, in fact, a defence lawyer who takes nothing
for granted and asks tough questions, even unpopular ones, like the
ones lawyers Gibson Kamau Kuria and Jane Ondieki were asking in the
Kiruki Commission. The term "devil’s advocate" is in fact borrowed
from the Catholic Church, which appoints an official as the "devil’s
advocate" to present arguments against the canonisation of a candidate
for sainthood.
Without lawyers playing the devil’s advocate the integrity of our
judicial system would collapse. Devil’s advocates are needed because
courts assume, and rightly so, that there are two sides to every
question. They also presuppose that all parties ought to receive a
fair hearing and it is the job of lawyers to articulate the relevant
legal principles. Then judges, who are supposed to be disinterested,
can fairly decide on the merits of the case.
A lawyer does not defend the crime committed by his client. He defends
his legal rights. A lawyer cannot, because of his professional code
of conduct and ethics, refuse to represent a client because he is
"bad" any more than a doctor can refuse to treat a patient because
he has syphilis. A lawyer should not be adjudged guilty or bad simply
because of his association with his client.
A lawyer’s professional obligation is to zealously protect and pursue
his client’s legitimate interests within the bounds of the law, even
at the expense of incurring public unpopularity or judicial disfavor.
Lawyers owe their clients complete devotion. A lawyer is supposed to
do everything that is legal to defend his client, and a good lawyer
does everything he knows to cast doubt on the prosecution case. He
does so not because he condones crime but because the law assumes a
person is innocent until proven guilty.
Principles of equality
This duty of lawyers is internationally recognised. The Universal
Declaration of Human Rights enshrines the principles of equality
before the law, the presumption of innocence, and the right to a fair
hearing. The United Nations Basic Principles on the Role of Lawyers,
formulated in September 1990 and incumbent on all member states,
also requires lawyers to protect the interests of their clients "in
every appropriate way." Rule 18 of the Basic Principles requires that
lawyers "shall not be identified with their clients or their clients’
causes as a result of discharging their functions."
Dr Kuria was absolutely right when he said that he will defend the
devil – not that his client was one – at all costs. If that were not
the case, we can all forget about a fair judicial system.
