January 21, 2022

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EALS statement on Kenya’s decision to block advocates from Rwanda and Burundi from practicing in Kenya

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Our attention has been drawn to recent press reports regarding ongoing debate and public consultations by the National Assembly of Kenya on the Advocates (Amendment) Bill, No. 43 of 2021. On Monday, 8 th November, 2021, the Justice and Legal Affairs Committee of the Assembly reportedly endorsed revocation to the amendments to sections 12 and 13 of the Advocates Act that had the effect of including Rwandan and Burundian nationals as advocates capable of practicing in Kenya.

In 2012, the National Assembly of Kenya through Statute Law (Miscellaneous Amendment) Act, 2012, amended Section 12 and 13 of the Advocates Act to include Rwanda and Burundi. This progress was clawed back when in 2019, the Court of Appeal of Kenya struck down the amendments, effectively locking out advocates from the two countries.

The nullification of amendments to section 12 and 13 of the Advocates Act by the Court appears to be a decision the Justice and Legal Affairs Committee of the Kenyan Parliament endorsed and ratified on Monday 8th November 2021, stating that the ban on Burundian and Rwandan advocates from practicing in Kenya will be in place until ‘the latter member States of the East African Community work towards mutual and equivalent harmonization’ of the requirements for admission to the bar.’

On 9th December 2021, the Speaker of the National Assembly rejected a proposal by the Attorney General of Kenya to withdraw the Bill and introduce two fresh amendments that would create provisions to accommodate advocates from Rwanda and Burundi.

This unfortunate development presents yet another challenge to the desire of the East African Community (EAC) unity, whose journey to full integration has historically been difficult; the elusive unity continually oscillating between potentially progressive policy and legislative reforms at the EAC level and unrhythmic regressive practices by individual Partner States.

This is evidenced by regular “trade wars”, erection of unnecessary NTBs and other acts that impede free movement of labor (including legal services), people, services and capital, contrary to what is envisaged under EAC scope of cooperation in Article 104 of the EAC Treaty.

This fresh challenge to cross-border legal practice is also an indictment to the implementation of the Protocol for the Establishment of the East African Common Market. This Protocol provides among others for removal of restrictions on movement of labor services (article 5) as well as committing member states to mutual recognition of academic and professional qualifications (including legal qualifications) (Article 11 of the Common Market Protocol).

While Kenya has been allowing Advocates from Burundi and Rwanda to practice before its courts, she argues that Kenyan Advocates have not been accorded corresponding privilege to practice in the Republics of Rwanda and Burundi. This is however a misinformed position as Kenyan advocates are allowed and quite a number have been practicing in the Republics of Rwanda and Burundi. Both countries have provisions in their laws to provide for recognition of foreign advocates as below.

In the case of Rwanda, legal practice is regulated under Law No. 83 of 2013. Under this law, it is primarily Rwandan Advocates who have a right to appear before Rwandan courts (article 2 read together with article 6(1) of Rwanda’s Law No. 83 of 2013).

However, under article 7, foreign Advocates can also practice in Rwandan courts where there is a reciprocal arrangement between Rwanda and their country of nationality, subject to them observing the generally applicable regulations for the conduct of advocates in carrying out their trade (article 7). Article 7 specifically provides: “Advocates from States which have concluded a regional integration agreement with Rwanda shall be allowed to practice in Rwanda as provided in for in such a regional integration agreement.”

This provision mirrors the spirit of Article 11 of the Common Market Protocol by which partner states committed to accept and recognize each other’s requirements, certificates and licenses for purposes of professional services such as legal services, as long as these are harmonized, considered equivalent to Kenya’s qualifications or meet the international standards for the same.

On its part, Burundi’s Law No. 1/014 of 29 November 2002 allows foreign lawyers who have successfully made an application to the Court, which in turn primarily seeks for the opinion of the President of the Burundi Bar Association, to practice before Burundian courts (Article 30 of Burundi’s Law No. 1/014 of 29 November 2002).

In view of the fact that the EAC Common Market Protocol requires that Partner States recognize qualifications from other countries and the steady progress made towards a Mutual Recognition Agreement (MRA) for lawyers in the region, Kenya’s decision to bar Rwandan and Burundian Advocates is retrogressive, not in conformity with the spirit of integration and does not motivate the fast-tracking of the conclusion of the relevant MRAs.

EALS therefore calls upon the National Assembly and Government of Kenya to respect its obligations under the EAC Treaty and attendant Protocols, show leadership and spearhead the move towards a fully integrated EAC.

We also call upon other EAC Partner States to take all necessary measures to ensure that the issue of mutual recognition of cross border legal practice is urgently resolved, in the spirit of moving forward with and consolidating the gains made so far in achieving full integration of the East African Community.

Bernard Oundo President, East Africa Law Society

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