The evaluation of legal and institutiona, framework for advocate displinary process in Kenya under the new constitution 2010.

Abstract

The study aimed at investigating the constitutionality of the legal profession regulatory framework in Kenya. This was necessitated by the fact that the existing framework precedents the Kenyan Constitution 2010 while the same is based on Statutes which are subsidiary to the Constitution. The study therefore gives structural analysis of the Advocate Disciplinary processes rising deficiencies in the said system and showing how these deficiencies make the existing framework unconstitutional. The research is based on the theory of Constitutional supremacy as defined by the Supreme Court of United State of America in the famous case of Marbury v Madison and the theory of public interest. The research is also guided by the concept of professional regulation. This concept is as old as the profession itself. Despite the concept being around for over a decade, Kenya does not seem to have gotten it right despite several amendments to the existing framework. The research demonstrate that it is not just not getting it right but the now with the new Constitution 2010 the existing framework risk being declared unconstitutional. A descriptive research design was used, however the research heavily did the comparative analysis. In the analysis the research looked at other jurisdictions and how they have managed to deal with deficiencies highlighted in the current framework. From the analysis several recommendations were given if the current framework was to be rescued. The recommendations may look at a paradigm shift from the current regime but it is necessary if the profession was to be effectively regulated.