COTU backs order barring private lawyers from representing government entities

The order suspended the engagement, procurement, and payment of private advocates and law firms by public entities pending the hearing and determination of a constitutional petition filed by Dr. Benjamin Gikenyi Magare, Senator Okiya Omtatah, and others.

In a press statement on Wednesday, COTU termed the outsourcing of legal services by national and county governments, state corporations, and parastatals as a serious governance failure, a waste of public resources. 

The trade union Secretary-General Francis Atwoli said the outsourcing of external legal services causes demoralization of in-house lawyers, and is a direct threat to the sustainability of public institutions.

“Billions of Kenyan shillings have been sunk into private law firms that continue to issue outrageous fee notes to public institutions financed by taxpayers’ money, even as working conditions, collective bargaining agreements, pensions, and service delivery continue being affected,” Atwoli said.

According to COTU, the government entities have, in most cases, paid private practitioners far more than the salaries paid to workers in many public institutions. 

“The craze in outsourcing legal services by national and county governments, state corporations and parastatals, only point to the fact that private law firms have become conduits of corruption being used by public institutions,” the umbrella body representing Kenyan workers added. 

COTU further argued that where public institutions don’t havethe capacity to handle certain cases, they should be forwarded to the office of the Attorney General for action. This, the trade union body said, would give a chance to professionals in the public offices to practice their craft and be held responsible for their actions.

“…even as their continuous training and terms and conditions of service are improved to match the competitive market rates so as to retain top-cadre legal professionals within the public service,” said COTU. 

In the Monday ruling, the Court directed the Controller of Budget (CoB) not to approve any public funds for external legal services, including payments to private advocates and law firms, until the matter is fully heard and determined.

This has sparked uproar among the legal profession, as the Law Society of Kenya termed the order a sustained effort to marginalise private legal practitioners from public sector work. 

The society said that the case is part of a recurring pattern aimed at locking out private advocates from government legal briefs, despite past court rulings affirming fair and competitive procurement of legal services.

"We strongly oppose this ill-advised move and urge those involved to reconsider this overzealous upheaval of legal practice," LSK said.