Artificial Intelligence, Art and Copyright

The Birth of Venus with an African Subject created by Francis Mahia and Midjourney.

The image above was created by the MidJourney‘s AI. It is a patently beautiful piece of digital art that immediately evokes the image of Sandro Boticelli’s The Birth of Venus. As soon as it was created, however, it inherited two of the current biggest questions surrounding Artificial Intelligence (AI) Art.

1. The rights to the image or who gets to profit from the image.
2. The ethics of the medium

Artificial Intelligence by Francis Mahia and Midjourney

What is AI?

AI art has been a hot topic in the world of art and technology in recent months. As AI technology continues to advance, more and more artists are turning to artificial intelligence as a tool to create their art. This has raised a number of ethical questions, including those related to the issue of copyright.

First, it’s important to define what is meant by AI art. In general, AI art refers to art that is created using artificial intelligence algorithms. This can include everything from paintings and drawings to music and videos. Some AI art is created entirely by algorithms, while other AI art is created by artists who use AI tools to help them create their work.

Copyright

Copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression. In copyright law, there are a lot of different types of works, including paintings, photographs, illustrations, musical compositions, sound recordings, computer programs, books, poems, blog posts, movies, architectural works, plays, and so much more.

Works are defined as original when they are independently created by a human author and have a minimal degree of creativity. Remember the case of a monkey that took a selfie? Yes it was ruled that since it was not of human creation, the photograph did not enjoy copyright protection.

Independent creation simply means that you create it yourself, without copying. The U.S. Supreme Court has said that, to be creative, a work must have a “spark” and “modicum” of creativity. Copyright protects the expression of an idea, not an idea itself.

A work is fixed when it is captured (either by or under the authority of an author) in a sufficiently permanent medium such that the work can be perceived, reproduced, or communicated for more than a short time. For example, a work is fixed when you write it down or record it.

Santa and children screaming – Midjourney

Ethics of Copyright and AI Art

a) Ownership of the Art

One of the key ethical issues related to AI art and copyright is the question of ownership. Who owns the copyright to a piece of AI art? Is it the artist who created the AI algorithm, the artist who used the algorithm to create the art, or the algorithm itself? This question is not easily answered, as it raises a number of complex issues.

One potential solution to this problem is to recognize the AI algorithm as a co-author of the art. In this scenario, the artist who created the algorithm would be considered a co-author of the art, along with the artist who used the algorithm to create the art. This would ensure that both parties have a claim to the copyright of the art.

Another potential solution is to consider the AI algorithm as a tool, rather than a co-author. In this scenario, the artist who uses the algorithm to create the art would be considered the sole owner of the copyright. This approach is similar to how we currently treat other tools, such as paints and brushes, which are used by artists to create their art.

Both of these approaches have their own advantages and disadvantages. Recognizing the AI algorithm as a co-author would ensure that the creators of the algorithm are fairly compensated for their contribution to the art. However, it could also lead to complex legal battles over who has the right to use the algorithm, and how the profits from the sale of the art should be divided.

On the other hand, treating the AI algorithm as a tool would simplify the issue of ownership, as it would clearly establish the artist who uses the algorithm as the sole owner of the copyright. However, it could also potentially discourage the development of AI algorithms for artistic purposes, as creators of these algorithms would not have any financial incentive to share their work.

Hanuman at War by Francis Mahia and MidJourney

b) Question of Originality of the Art

Another ethical issue related to AI art and copyright is the question of originality. In order for a work to be protected by copyright, it must be considered “original” – that is, it must be the product of the artist’s own creative effort. But what does this mean in the context of AI art?

Some argue that AI algorithms are capable of producing truly original works of art, as they are not limited by the constraints of human creativity. In this view, AI art should be eligible for copyright protection just like any other art. Others, however, argue that AI art is not truly original, as it is ultimately the product of a human-designed algorithm. In this view, AI art should not be eligible for copyright protection. In addition, Many argue that AI-generated art lacks the unique perspective and creativity of human-made art, and therefore cannot be considered truly original.

Another issue is the potential for AI to be used to manipulate or copy existing works without permission. With the ability to quickly and easily analyse and replicate elements of a piece of art, AI could potentially be used for nefarious purposes, such as creating fake art or copying someone else’s work without their permission.

Evil Santa by Midjourney

Complex Questions

This debate raises a number of complex questions about the nature of creativity and originality. On the one hand, it is clear that AI algorithms can produce art that is unlike anything that a human artist could create. On the other hand, it is also clear that these algorithms are ultimately the product of human design and ingenuity.

Ultimately, the question of whether AI art should be eligible for copyright protection is a difficult one, and there is no clear answer. It will likely depend on the specific circumstances of a given situation, such as the extent of human involvement in the creation of the artwork, the nature of the AI used, and the specific laws in the jurisdiction in which the artwork is produced.

In the end, the courts may have to decide the issue on a case-by-case basis. In general, copyright law is intended to protect the original expression of an author, and it is difficult to argue that a work created by a machine can meet this criteria. On the other hand, AI art can be incredibly complex and original in its own right, and there is an argument to be made that it should be eligible for the same protection as other forms of art.

That said, it is possible that AI art may be eligible for copyright protection in some cases, and it may become increasingly important for AI creators to seek legal advice in order to protect their work. This is an issue that will require a lot more research and debate before a definitive answer can be reached.

Kenyan Royal Family Portrait in the Renaissance Period – Francis Mahia and MidJourney

Recommendations

In the meantime, these questions and concerns highlight the need for ethical guidelines and regulations in the use of AI in the art world. As AI technology continues to advance, it is crucial for the art community to come together and establish clear rules and regulations to protect the rights of artists and ensure the integrity of the art industry.

Additionally, it is important for artists to consider the ethical implications of using AI in their own work. Whether using AI as a tool or creating AI-generated art, artists must take responsibility for the impact of their work and ensure that it aligns with their own values and ethics.

In conclusion, the use of AI in art raises important ethical questions and concerns. From the issue of originality to the potential for manipulation and infringement, the ethics of copyright in AI art is a complex and evolving topic.

TECHNOLOGY AND THE FUTURE OF LEGAL SERVICES

“The first thing we do, let’s kill all the lawyers”.

It would be a fair statement to say that the legal profession is averse to change. This is even more pronounced in the Common Law jurisdictions. From how we dress (wigs and gowns even here in the tropics) to how we address the court (My Lord, My Lady) to the doctrine of precedence captured in the latin maxim stare decisis et non quieta movere. We still file most documents in paper and still send correspondence by post even with the ubiquity of the internet and email communication.

We, as a profession, simply abhor change.

But in the 21^st Century, with the major advancement of technology, the legal profession has also slowly but surely been embracing the changes.

Law firms are currently embracing electronic filing and archiving in servers and databases. Research is being conducted through online searches that are cross referenced rather than through the physical books and Law Reports. Billing and case management softwares are starting to make their way into law firms which is making for more efficient law firms. Huge legal libraries in offices as well as filing rooms are now shrinking and will soon disappear as we continue to rely on cloud computing.

Lawyers are advertising their services on social media and are making themselves much more accessible even giving advise on platforms like Twitter. Whereas as a Profession, lawyers were seen as expensive and pedantic with specialised knowledge of the law courts, and use of archaic languages and arcane procedures, a lot of legal mystery is being demystified through the use of the internet and social media. While it would take a visit to the lawyer to have your contract done, the internet now contains thousands of templates for a layman to choose from.

And this is still just the beginning. Whereas traditionally, the target of technological automation was mechanical labor and factory jobs[1], improvements analytics has now caused this trend to extend beyond blue-collar jobs and into white-collar jobs, such as the legal profession. In more technologically advanced countries, analytics and complex algorithms are being used to replace routine tasks automating them to make them cheaper to run. In the UK for example, in 2016 The Royal Bank of Scotland announced it would be switching customer advice services over to “robo-advisers.”[2]

The next step in the technological revolution within the legal industry is the use of robotic and Artificial Intelligence including machine learning. Companies such as Seal have been developing software that can conduct contract discovery and analytics. The software is used to identify themes and clauses using various combinations of words to identify non-standard clauses or provisions that may be written in abstract or confusing ways.[3] Therefore, what would have taken some lawyer hours to find now takes seconds.

Law firms too in the developed world have been using robotics and algorithms to automate routine processes, with some firms already using virtual assistants to assist clients and perform in-house functions.[4] In the USA for example, Baker Hostetler, a US-based law firm, adopted an AI lawyer named ‘ROSS’ which is built upon IBM’s cognitive computer “Watson.” Its natural language processing capabilities equips it to answer research questions from lawyers by reading through legal documents, gathering evidences, drawing inferences and giving highly relevant answers. The firm is planning to license ROSS for use in its Bankruptcy, Restructuring and Creditor’s Rights Team.[5]

What does this mean for the lawyers? Well the future is yet unwritten and no one can predict how the profession will be affected by the leaps and bounds being experienced in the law. However, a study by Deloitte[6] offers a few insights.  It states that within the next two decades, in the UK an estimated 114,000 jobs in the legal sector will have a high chance of having been replaced with automated machines and algorithms. According to the article, those 114,000 jobs represent 39% of all jobs in legal.

There will always be a need to have skilled lawyers. If for nothing else, for them to be the butt of many bad lawyer jokes. But the lawyers will have to have the right training and specialized skill and experience to provide high level and high value legal advise for decision making. Low value administrative process in the legal profession will be left to automation. Questions will abound about cyber security and confidentiality concerns, but essentially the benefits will outweigh the cons in my view.

In conclusion, it is my belief that technology will continue to make the legal profession more accessible and cost friendly as well as more efficient.

[1] https://futurism.com/85-jobs-threatened-automation-spell-doom/

[2] https://futurism.com/the-royal-bank-of-scotland-replaces-face-to-face-financial-advice-with-robo-advisers-6/

[3] https://www.seal-software.com/platforms

[4] https://www.seal-software.com/blog/impact-technology-legal-profession

[5] https://www.gep.com/mind/blog/impact-technology-legal-services-bridging-gap-between-technology-and-legal-services-part-2

[6] https://www2.deloitte.com/uk/en/pages/audit/articles/developing-legal-talent.html

WHY KENYA MUST NEVER GO THE ELECTORAL COLLEGE WAY

After the 2013 elections that were decided by what has come to be known as the “Tyranny of Numbers”, many of the poll losers started looking for a way in which future elections would no longer be decided upon the population of the major tribes.  There was and still is a feeling that we need a different sort of electing our leaders that is not based upon the majority popular vote. What has been suggested has been use of a parliamentary system or an electoral college.

Tyranny of Numbers

Uneducated Population

The electoral college as many know is a concept from the United States of America. The electoral college was developed by the American founding fathers as a compromise between a president elected by Congress and one elected by the popular vote of the people. They feared that if the president was elected by Congress, he/she may feel some obligation to it. They also felt that the American people were not well enough informed and mature enough to elect their own leader. They finally decided on an Electoral College that today is made up of 538 electors from all 50 states and the District of Columbia. Each state is allotted a number of electors equal to its number of Representatives and Senators in Washington. The District of Columbia has a number of electors equal to that of the least populated state.

When the founders set up that system, democracy was practiced differently from today Women could not vote; African Americans could not vote; people without property could not vote. The men who wrote the Constitution were deeply mistrustful of popular opinion. Hence they set up the electoral college, theoretically composed of wise and prudent men who could be trusted with the job of picking a president. U.S. senators weren’t chosen directly by the people, either; state legislatures did that.

Since then the American voting population has greatly expanded. African Americans won the constitutional right to vote in 1870, women in 1920, and eighteen-year-olds in 1971. Senate races yielded to direct election early in the twentieth century. Today, with universal public education, newspapers, radio, television, and the Internet, citizens can see and hear candidates in a way unimaginable in 1787. The idea that the people aren’t qualified to choose their president directly does not hold up. The course of American history has been inexorably toward greater fairness, uniformity, and inclusiveness in our democracy. Yet the system for electing the most important representative of the American people is stuck in a time warp.

In Kenya too people are informed on their choices and no one has a monopoly on political intelligence.

One Man One Vote

Of course the obvious criticism of this system is the idea that it rubbishes the key democratic principle of one man one vote. Opponents of the Electoral College claim that such outcomes do not logically follow the normative concept of how a democratic system should function. One view is that the Electoral College violates the principle of political equality, since presidential elections are not decided by the one-person one-vote principle.

The second criticism of this system is irrelevancy of national popular vote.

The American elections of 1876, 1888, and 2000 produced an Electoral College winner who did not receive the plurality of the nationwide popular vote. In 1824, there were six states in which electors were legislatively appointed, rather than popularly elected, so the true national popular vote is uncertain. When no candidate received a majority of electoral votes in 1824, the election was decided by the House of Representatives and so could be considered distinct from the latter three elections in which all of the states had popular selection of electors.

Outcomes of this sort are attributable to the federal nature of the system. From such a configuration, argue supporters of the Electoral College, candidates must build a popular base that is geographically broader and more diverse in voter interests. This feature is not a logical consequence of having intermediate elections of Presidents, but rather the winner-takes-all method of allocating each state’s slate of electors. Allocation of electors in proportion to the state’s popular vote could reduce this effect.

Scenarios exhibiting this outcome typically result when the winning candidate has won the requisite configuration of states (and thus their votes) by small margins, but the losing candidate captured large voter margins in the remaining states. In this case, the very large margins secured by the losing candidate in the other states would aggregate to well over 50 percent of the ballots cast nationally. In a two-candidate race, with equal voter turnout in every district and no faithless electors, a candidate could win the electoral college while winning only about 22% of the nationwide popular vote.

A result of the present functionality of the Electoral College is that the national popular vote bears no legal or factual significance on determining the outcome of the election. Since the national popular vote is irrelevant, both voters and candidates are assumed to base their campaign strategies around the existence of the Electoral College; any close race has candidates campaigning to maximize electoral votes by capturing coveted swing states, not to maximize national popular vote totals.

The United States is the only country that elects a politically powerful president via an electoral college and the only one in which a candidate can become president without having obtained the highest number of votes in the sole or final round of popular voting.

—George C. Edwards, 2011           

There is a reason why America is the only country using the antiquated system of electoral college. It is because it does not work as well as true democracy based on the principle of one man one vote. Since 1944 a majority of Americans have wanted the system to be changed. But self-interest of some in their system has made it impossible to remove the same.

Given our predilection as a country not to be happy with election results, I believe that it would be an easier sell to Kenyans to accept popular vote than to push them to accept presidential result with no popular mandate.

Ethnicity at the ballot should end. But this trouble-ridden way is not the answer. I for one would rather a president elected by popular mandate than one elected by a chosen few. As has often been said to me vox populi, vox Dei – The Voice of the People is indeed the voice of God.

ON EMPLOYMENT LAW

Common Mistakes Made by Employers

• Absence of written Contracts of Employment detailing terms of employment.
• Failure to keep records relating to casual and other staff. Some records are required by law while prudence dictates that other records such as Casual Workers records be kept.
• Failure to adhere to minimum wage guidelines.
• Failure to issue pay slip (itemized pay statement except for casual employees and those engaged on piece rate or task rate terms for a period under 6 months
• Denying employees minimum rights and benefits accorded to them by law.
• Failure to register for, deduct and remit P.A.Y.E. and NSSF and NHIF contributions.
• Keeping employees on casual or contract status indefinitely.
• Subjecting employees to unsafe working environment or working conditions/circumstances                                                  which expose employees to risk of disease, injury or death for which employer will be liable.

Types of Employment

Casual Employment

• Engaged and paid on a daily basis
• Suitable for companies with seasonal business patterns
• Casual employees are not entitled to many of the usual rights and benefits of employment
• Terminable by either party at the close of any day without notice.
• May be converted to term contract where employee works for a period or a number of continuous working days in the aggregate of not less than one month.
• May also be converted where the employee performs work which cannot reasonably be expected to completed within a period of three months.

Fixed -Term/Temporary Employment

• By oral or written agreement, the employee is engaged for a fixed period on agreed terms.
• Suitable for companies with seasonal business patterns or jobs for limited periods.
• Contract can be renewed.
• During the contract period, the employee is entitled to all rights and benefits of employment, and where agreed on, may be paid gratuity at the end of his contract.
• Statutory deductions (PAYE, NSSF and NHIF) should be made and remitted.

Permanent Employment

• Employment contract or Offer Letter sets the duration of employment to a set retirement age.
• Employee is entitled to all statutory rights and benefits as well as those put in place by employer either voluntarily or under a Collective Bargaining Agreement.

Probation

• Prospective employee is put on a job and ability and suitability are assessed.

If the employer is satisfied, the employee can be confirmed to the position.

• During the probation period, person is not entitled to the usual legal rights and benefits of employment such as leave and off days.
• Probation period not to exceed six months.
• Statutory deductions (PAYE, NSSF and NHIF) should be made and remitted

Importance of Employment Contracts and Other Records of Employment

• Statutory requirement. The Employment Act requires that contract of service for working days in the aggregate of three months or more must be in writing.
• Under the Employment Act, 2007 employers are obligated to maintain written records of all employees including employment registers. Penalty for entering false information on Employment Register is Ksh 100,000/= or 6 months imprisonment or both.
• Other records employers should maintain for all employees include Casual Workers Employment Cards, Employee Attendance Registers and Accident Registers.
• Contracts and records can help to resolve labor disputes or industrial accident claims.
• Should be witnessed by a person other than the employer.

Terms of Employment Contracts

• Basic terms are negotiated and can be expressly agreed or implied.
• Implied terms to an employment contract are imposed by Acts of Parliament and any rules and regulations made thereunder, e.g. the Employment Act and the Regulation of Wages and Conditions of Employment Act.
• Other terms are based on common law, and company/industry practices.
• Where employees are members of a registered trade union, their terms of employment may from time to time be influenced by Collective Bargaining Agreements between the employer and the union representing employees.
• An employment contract cannot purport to deny the employee rights that are granted by law or by a Collective Bargaining Agreement. These even when absent in an employment contract constitute implied terms to the contract.

Mandatory Particulars in Contract of Service

• Name, age, permanent address and sex of employee
• Name of employer
• Job description of the employment
• Date of commencement of the employment
• The form and duration of the contract
• The place of work
• The hours of work
• Remuneration and intervals at which paid
• Entitlement to annual leave and holiday pay
• Incapacity to work due to sickness.
• Pensions and Pension schemes
• Termination notice.
• Where contract not indefinite, the period it is to continue.
• Place of work
• Any collective agreements affecting terms of employment
• Where employee to work outside Kenya for over one month, period and remuneration currency and conditions relating to return.
• Where employer has over 50 employees specify disciplinary rules and appeals therefrom.
• Changes to the above particulars notified to employee by a written statement within a month after change.
• Change resulting in relocating employee outside Kenya for over a month requires 1 month notice.
• Failure to adhere attracts fine not exceeding Ksh. 100,000/- and/or two years imprisonment.

Determination of Wages and Salaries

• Minimum wages and conditions of employment for certain industries are imposed by the Government under the Regulation of Wages and Orders issued annually under the Labour Institutions Act (No. 12 of 2007).
• Employees are entitled to these minimum wages and conditions of employment even if their contacts of employment state otherwise.
• Failing to adhere to guidelines on minimum wages and conditions of employment is a criminal offence. Penalty is Ksh 50,000/= or 3 months imprisonment or both together with payment of the amount that is due to the employee (difference between minimum wage and the actual wages).
  • In case of payments below minimum wages, legal proceedings against employer can be instituted by a labour officer/inspector.
  • Minimum Wage Guidelines once set by the Minister are published in the Kenya Gazette and can be obtained at the Government Press.
  • Where employees are members of a registered trade union, their remuneration is also influenced by Collective Bargaining Agreements between the employer and the union.
  • Negotiation and employer’s current practices also determine the upper limit and nature of remuneration. Issues to consider include inflation rates and industry standards.
  • Payable in cash or kind. There can be fringe benefits such as housing or house allowance, payment for children’s education, e.t.c.

Deductions Allowable from Employee’s pay

• Contribution to a provident scheme.
• Reasonable amount for damage to or loss from wilful default of property of the employer.
• Money shortage arising from negligence or dishonesty where employee entrusted with money as per contract.
• Wages payable for days the employee was absent.
• Erroneously paid excess wages.
• Deductions authorized by law e.g. Court Order, Collective Agreement.
• Amount requested by employee on which employer has no beneficial interest.
• Amount due to employer on terms of a written agreement by way of repayment. Such deduction not to exceed 50% of net wages (i.e. wages after all such amounts above).
• Such other amounts as minister may prescribe.

Total amount of all deductions from wages above must not exceed two thirds of employee pay.

Pay As You Earn (PAYE)

• The Income Tax Act places on employers an obligation to deduct and remit monthly, income tax for resident employees earning above Ksh 10,164/= per month. Employers are required also to tax benefits such as use of company vehicles.
• Annual income tax returns should be made by employers for ALL employees whether subject to PAYE or not.
• Penalty for failing to comply is twenty five per cent of the amount of tax involved or ten thousand shillings, whichever is greater. The employer is also subject to proceedings for the recovery of the tax plus interest thereon at 2 % per month.
• Directors and managers also liable to a fine of not less than ten thousand shillings but not more than two hundred thousand shillings or to imprisonment for a term not exceeding two years or to both.

NSSF and NHIF Deductions

• Registration of Employers and Employees under the National Social

Security Fund Act (Cap 258) and the National Hospital Insurance Fund Act (Act No. 9 of 1998) is a statutory requirement.

• Standard NSSF contribution is Ksh 200/= deducted from employee’s salary, with employer contributing an equal amount. Failure to comply is a criminal offence subject to a penalty equal to five per cent of the amount payable and a fine of up to Ksh 15,000/=.
• NHIF contribution is deducted from employee’s salary and depends on the salary. Failure to comply is a criminal offence subject to a penalty equal to five times the amount of that contribution

Minimum Employment Rights and

Benefits under the Employment Act.

• Part V and VI of the Employment Act give the basic minimum terms and conditions for any contract of service.
• Where employer’s terms of service are more favourable to an employee than the terms provided in the Act then such favourable terms and conditions shall apply.

• Hours of work – An employee is entitled to at least one rest day in every period of seven days.
• Annual leave – after 12 consecutive months of service an employee is entitled to not less than 21 working days of leave with full pay.
• Where employment is terminated after two or more consecutive months of service employee is entitled to not less than one and three-quarter days of leave with full pay in respect of each completed month of service.

• Employee may, with the consent of the employer divide the annual leave into different parts to be taken at different intervals.
• Maternity Leave – female employees are entitled to three months of maternity leave with full pay.
• Annual leave not forfeited on account of an employee having taken her maternity leave.
• Paternity Leave- male employees entitled to 2 weeks paternity leave with full pay
• Sick leave – after two consecutive months of service an employee is entitled to sick leave of at least 7 days with full pay, thereafter 7 days with half pay in each year.
• Housing – employer is obliged to provide reasonable accommodation for each of his employees or pay to the employee such sufficient sum, as rent, in addition to the salary of the employee.
• Above provision does not apply to an employee whose contract of service consolidates an element of basic salary for use by employee as rent.
• Public holidays and weekly rest days (one per week) on full pay in addition to leave days. Where employees work on public holidays they are entitled to payment at double their wage rate in addition to their normal wage.

Modes of Termination of Employment

Termination of probationary contracts

• Probation period must not exceed 6 months but extendable for another 6 months with employee consent.
• Termination notice of probationary contract is not less than 7 days or payment of wages in lieu.

Termination by Notice Issued by

Employer or Employee

• Minimum statutory notice period for monthly employment is one month
• Where no notice is given, there should be payment of wages for the notice period in lieu of notice by the party terminating
• Employees are entitled to moneys, allowances and benefits earned while in employment, e.g. salary, accrued leave payments, bonuses, retirement benefits, etc.
• Certificates of Service must be given.
• Does not apply for casual workers whose engagement ends at the end of each day

Termination on grounds of misconduct and summary dismissal

• Summary dismissal is for serious misconduct. Grounds include absenteeism, crime, intoxication, disobedience, etc.
• Summary dismissal and termination on grounds of misconduct, poor performance or physical incapacity reasons thereof must be explained to the employee.
• During explanation employee entitled to have another employee or a shop floor union representative of his choice present.
• The representations of the employee and person present with him must be heard and considered before termination (Sec 41).
• In the case of dismissal after warning, warnings should be in writing and kept in the employer’s records for the particular employee.
• Dismissed employees are entitled to moneys, allowances and benefits earned while in employment, e.g. salary, accrued leave payments, retirement benefits, e.t.c.
• Dismissed employees are entitled also to certificates of service.
• Upon dismissal, the employer should make a written report to the district labor office explaining the circumstances leading to, and reasons for, the dismissal as well as giving other specified details of the employee’s terms of employment

Termination on account redundancy

• Occurs when employees cannot be utilized for any work, e.g. during a period of recession when the company has little business.
• Termination of employment in this manner should be carried out according to law and the area labor office should be notified.
• Employees are entitled to severance pay (15 days for every year worked), one month’s wages in lieu of notice and accrued leave payments and all other benefits due.

Unfair termination

A termination is unfair if the employer fails to prove:-

• Validity of reason for the termination
• Fairness of reason for the termination i.e. based on operational requirements of the employer or related to the employees conduct, capacity or compatibility.
• Use of fair procedure in termination ie employer was just and equitable,

Industrial Court also considers:

• Procedure adopted by employer in reaching decision to dismiss the employee.
• The manner of communication of the decision and the handling of any appeal.
• The conduct and capability of employee up to the date of termination.
• Extent to which employer has complied with any statutory requirements connected with the termination.
• The previous practice of the employer in dealing with the type of circumstances which led to the termination.
• The existence of any previous warning letters to the employee.

Service pay

• Members of registered pension schemes, employees receiving a gratuity or those registered under NSSF are not entitled to service pay for every year worked( Sec 35(6)

LABOUR INSTITUTIONS ACT, 2007

• Establishes labour institutions, provides for their functions, powers and duties and related matters.
• Establishes the Industrial Court.

Remedial Powers of the Court in cases of wrongful dismissal (Sec 15)

• Reinstatement of employee from date not earlier than the date of dismissal
• Re-engage the employee in same or reasonably suitable capacity.
• Pay compensation to the employee to a maximum of 12 months wages.

Authorised Officers under the Act

Labour Officers

To enforce labour law compliance he may:

• require production of employment records and seize them if believed to contain evidence of an offence.
• require information on names and addresses of employees and remuneration.
• examine employee to whom a wages Order applies
• Enter and inspect premises an employee work premises to determine adherence to labour laws.
• Examine and inspect food provided for employees.
• Institute proceedings in respect of contravention of labour laws.

WHEN DNA TESTING CAN BE COURT ORDERED

Via eklr.org

“In determining a paternity dispute, the court must of necessity weigh the competing rights of the child and the party who is alleged to be the biological father. The right of the child to parental care takes precedence particularly in light of the cardinal constitutional principle set out in Article 53(2) that in such matters, the paramount consideration is the best interests of the child.

On July 17, 2008, an order compelling the petitioner to undertake a DNA test was issued by the Children’s Court in Nairobi after the petitioner had denied paternity of the respondent’s child. Aggrieved by that order, the petitioner petitioned the constitutional court for a declaration that the orders made were unconstitutional and hence sought the orders to be set aside.

It was the petitioner’s case that the order was unconstitutional as it violated the petitioner’s freedom of conscience contrary to Article 32(1) of the New Constitution and also contrary to section 70(b) and 78(1) of the old constitution. According to the petitioner, the order infringed his rights as he had made it very clear to the subordinate court that he was not ready for such a DNA test and he would suffer mental anguish and trauma if he was subjected to a test that he was not ready for. His view was that the issue of a DNA test was irrelevant to the determination of the case before the Children’s Court because, under the Children Act, section 24(2), the most important matter was parental responsibility. He invited the court to take judicial notice of the fact that the Children Act had not been amended hence section 24(2) with regard to parental responsibility was still applicable. It was the petitioner’s case that he was not the father of the child respondent in the petition, and even if he was, he had no parental responsibility under section 24(2). 

The respondent objected to the petition on the ground that the petition was incurably defective as the petitioner’s issue was against an order issued by the Children’s Court, but neither the Children’s Court nor the Attorney General was a party to the petition.  The respondent was only an Interested Party as she was the plaintiff on behalf of the child in the case before the Children’s Court.

On the DNA test issue, the respondent argued that the test was being ordered so as to assist the court as the issue of paternity was important in the children’s case. He referred to Article 53(1) (e) of the Constitution which imposed parental care and responsibility on both the mother and father of a child whether they were married to each other or not. That article, according to the respondent, took away the position of the petitioner with regard to section 24(2) of the Children Act which could only apply to fathers who were not biological fathers who had acquired parental responsibility. 

It was further argued that for biological fathers, such responsibility was automatic and by virtue of Article 2 of the Constitution, the Children Act could not supersede the provisions of the Constitution. The respondent pointed out that Article 2(4) was clear that any law inconsistent with the Constitution was void to the extent of the inconsistency. The sections of the Children Act which were contrary to the Constitution were hence null and void and the petitioner could not rely on them. The respondent noted that in any event the petitioner had invoked Article 32(1) and 32(4) of the Constitution and the petitioner could not invoke the constitution selectively.  He asked the court to dismiss the petition noting that the matter had started in 2006 and the two guiding principles were the best interest of the child and speedy trial of the issues in any case involving a child.

Court Findings
While the court found that the petition was incurably defective for failure to join the Attorney General as a party, the judge went further to lay to rest the matter by considering whether, had the petitioner properly brought the proceedings before the court, it would have been possible to find the orders of the Children’s Court requiring him to undergo a DNA test an infringement of his right to conscience.

Relevant Positions of the Law
Justice Mumbi Ngugi noted that the right of the child to parental care was a continuing right, and Article 53(1) (e) of the Constitution in that regard applied. The argument by the petitioner that the issue of paternity was irrelevant in order to establish parental responsibility was therefore untenable. Further, in light of Article 2 of the Constitution with regard to the supremacy of the Constitution, the judge affirmed that any provision of the Children Act that is in conflict with the Constitution must give way to the Constitution.

The court acknowledged that in determining such matters, it had an obligation to weigh the competing rights of the child and the petitioner who was alleged to be the biological father. The right of the child to parental care according to the court had to take precedence particularly in light of the cardinal constitutional principle set out in Article 53(2) that in such a matter, the paramount consideration is the best interests of the child.

As to whether it would be an infringement of the petitioner’s constitutional right to freedom of conscience either under the new or the old constitution to require him to undergo a DNA test?  The court was guided by section 78(1) of the old constitution and Article 32(1) of the Constitution (2010). The court noted that the two provisions protected the right of all persons, including the petitioner, to freedom of thought and religion, and of the freedom to change his religion and belief and to practice his religion. The petitioner in the courts’ view had not demonstrated how by being required to undergo a DNA test violated his freedom of conscience as guaranteed by the Constitution. 

In answering the question whether the petitioners unwillingness to undergo the DNA test was sufficient to override the interests of the child who would thereby be denied the constitutional right to parental care, the Court made reference to the case of MW-v-KC Kakamega HC Misc Application No. 105 of 2004 and the case of Shri Rohit Shekhar-v- Shri Narayan Dutt Tiwari & Anr IA NO 4720 of 2008.

The principle that emerged from these decisions was that an order for DNA testing should be made if it is in the interests of the child and if a prima facie case had been made to justify such an order. Such an order would not in the courts’ view be in violation of any of the petitioner’s constitutional rights and would be in the best interests of the child. In light of that, the petition was dismissed with costs to the respondent.

INTELLECTUAL PROPERTY PROCEDURE IN KENYA

Apart from ensuring that your new products or services reach as many consumers as possible, it is also crucial to guarantee that none of your competitors will be able to copy your new products and flood the market with cheap imitations.

Two ways of protecting new products are by registering patents or trademarks.

Patents

Patents are registered with the Kenya Industrial Property Institute (KIPI) which is a Government department under the Ministry of Trade and Industry. Kenya is a member of African Regional Industrial Property Office (ARIPO). This is a regional organization of 12 countries namely Kenya, Zimbabwe, The Gambia, Ghana, Lesotho, Botswana, Somalia, Sudan, Tanzania, Uganda, Swaziland, Malawi and Zambia.

A Patent provides its owner the protection of the invention.

Inventors wishing to protect their inventions in these countries may file one application in Kenya and designate any or all them.

Kenya is also a member of the World Intellectual Property Organization (WIPO) World Intellectual Property Organization WIPO, which administers the international Patent Cooperation treaty (PCT).

U need Patents if your invention has market potential and you think that another company could make profits from your invention, you need protection from a patent.
-A patent gives you the right to exclude others from making your product.
-As a patent gives exclusivity, the patent holder has time to market the invention without competition making him/her able to charge higher prices.
-It gives the right to initiate legal action against anyone that is making or selling, without permission, the patent holder invention.
-You can make money by licensing or selling your invention to someone else.
-It gives you priority over third parties wanting to register their patents in countries that do not require registration.

An application for a patent should contain:

1. A request (Form IP 3) available from KIPI
2. A description which should:

• state the title of the invention
• specify the technical field to which the invention relates;
• indicate the background art which, as far as it is known to the applicant, can be regarded as useful for the understanding, searching and examination of the invention; and
• indicate how the invention is industrially applicable
3. Claims:
The claim(s) should define the matter for which protection is sought. A claim should set out:

• the technical features that are necessary to define the subject matter of the invention but that are part of the prior art; and
• the technical features that, in combination with the features referred to above, define that for which protection is sought.

4. One or more drawings (where necessary)

5. An abstract
The abstract should include the title of the invention; and a summary of the disclosure included in the description. The summary should indicate the technical field to which the invention relates and the principal use or uses of the invention.

Trademarks

A trade mark is a form of property with considerable value acquired through goodwill. It can be sold, given or otherwise transferred to another party through a transaction referred to as an assignment. Trademarks are registered at the Kenya Industrial Property Institute (KIPI) and last for an initial term of 10 years. Six months prior to the expiry of the ten years, the registrar will notify the owner of the trade mark of the imminent expiry of the concerned trademark. The owner may then apply for a renewal which covers the next 10 years and the renewal can continue every 10 years thereafter upon payment of a renewal fee.

Before applying for the registration of a trade mark, an applicant should conduct a search to find out whether the trademark is registrable or not and also whether there exists in the records a trademark which could be confused with the intended trade mark. A search which costs Kshs. 2,000 is not mandatory but is advisable for the following two reasons:

1. It helps to determine whether the application has a chance of success, or whether it would be a waste of time and money to try and register it in its present form.
2. It also helps to avoid trade-mark infringement and potential lawsuits if one went straight ahead in applying for registration.

Thereafter, an application should be made accompanied by seven (7) representations of the mark. Each application costs Kshs. 3,000. Foreign applicants are required to file through an agent and thus the application should be accompanied by a form of authorization or power of attorney duly completed and signed and must have a duty stamp affixed on it.

There are three stages in examination of a Trade Mark:

1. Formality examination: this involves close checking to find out whether the right documents are filed, whether the forms included are properly filled, and the required fees is appropriately paid. It is necessary that the class should be checked against the specification and confirm that the name, description and address of the Applicant is clearly written
2. Search: A Search is conducted to ascertain that there is no similar or closely resembling mark is on the register, otherwise the present application can be refused on that ground.
3. Substantive examination: During substantive examination, the mark is examined as to its distinctiveness. Normally the applicant is requested to remove non distinctive matter and descriptive elements.

Logos, emblems, flags and Marks of International Organizations are normally not registrable by anybody else except the respective Organizations or one authorized by them to do so. Generic names of products are also not registrable.

If the examiner finds no grounds to refuse a trade mark application, then the Trade mark is advertised in the Industrial Property Journal or Kenya gazette to allow any interested party an opportunity to raise objections to the pending application prior to registration.

Any aggrieved party with valid grounds may oppose the registration of a trade mark so advertised in the Kenya Gazette. An opposition must be made within 60 days of the publication date, by filing a statement of opposition.

If there is no opposition or if an opposition has been decided in the applicants favour, the application will be registered and the Institute will issue a Certificate of Registration and enter the registration in the Trade Marks Register. This costs Kshs. 1,500.

One of the major functions of the trade marks office is to prevent anyone else from registering a mark that is the same as or confusingly similar to another. The Institute does not police trade mark or rather keep an eye out for cases of infringement on behalf of the owner.

It is the duty and full responsibility of the owner to monitor the market and to institute legal proceedings, in case someone is infringing on a registered trademark or is using a deceptively similar trademark likely to cause confusion.

“YOU’VE GOT TO FIND WHAT YOU LOVE” STEVE JOBS’ COMMENCEMENT ADDRESS AT STANFORD

This is a prepared text of the Commencement address delivered by Steve Jobs, CEO of Apple Computer and of Pixar Animation Studios, on June 12, 2005.

I am honored to be with you today at your commencement from one of the finest universities in the world. I never graduated from college. Truth be told, this is the closest I’ve ever gotten to a college graduation. Today I want to tell you three stories from my life. That’s it. No big deal. Just three stories.

The first story is about connecting the dots.

I dropped out of Reed College after the first 6 months, but then stayed around as a drop-in for another 18 months or so before I really quit. So why did I drop out?

It started before I was born. My biological mother was a young, unwed college graduate student, and she decided to put me up for adoption. She felt very strongly that I should be adopted by college graduates, so everything was all set for me to be adopted at birth by a lawyer and his wife. Except that when I popped out they decided at the last minute that they really wanted a girl. So my parents, who were on a waiting list, got a call in the middle of the night asking: “We have an unexpected baby boy; do you want him?” They said: “Of course.” My biological mother later found out that my mother had never graduated from college and that my father had never graduated from high school. She refused to sign the final adoption papers. She only relented a few months later when my parents promised that I would someday go to college.

And 17 years later I did go to college. But I naively chose a college that was almost as expensive as Stanford, and all of my working-class parents’ savings were being spent on my college tuition. After six months, I couldn’t see the value in it. I had no idea what I wanted to do with my life and no idea how college was going to help me figure it out. And here I was spending all of the money my parents had saved their entire life. So I decided to drop out and trust that it would all work out OK. It was pretty scary at the time, but looking back it was one of the best decisions I ever made. The minute I dropped out I could stop taking the required classes that didn’t interest me, and begin dropping in on the ones that looked interesting.

It wasn’t all romantic. I didn’t have a dorm room, so I slept on the floor in friends’ rooms, I returned coke bottles for the 5¢ deposits to buy food with, and I would walk the 7 miles across town every Sunday night to get one good meal a week at the Hare Krishna temple. I loved it. And much of what I stumbled into by following my curiosity and intuition turned out to be priceless later on. Let me give you one example:

Reed College at that time offered perhaps the best calligraphy instruction in the country. Throughout the campus every poster, every label on every drawer, was beautifully hand calligraphed. Because I had dropped out and didn’t have to take the normal classes, I decided to take a calligraphy class to learn how to do this. I learned about serif and san serif typefaces, about varying the amount of space between different letter combinations, about what makes great typography great. It was beautiful, historical, artistically subtle in a way that science can’t capture, and I found it fascinating.

None of this had even a hope of any practical application in my life. But ten years later, when we were designing the first Macintosh computer, it all came back to me. And we designed it all into the Mac. It was the first computer with beautiful typography. If I had never dropped in on that single course in college, the Mac would have never had multiple typefaces or proportionally spaced fonts. And since Windows just copied the Mac, it’s likely that no personal computer would have them. If I had never dropped out, I would have never dropped in on this calligraphy class, and personal computers might not have the wonderful typography that they do. Of course it was impossible to connect the dots looking forward when I was in college. But it was very, very clear looking backwards ten years later.

Again, you can’t connect the dots looking forward; you can only connect them looking backwards. So you have to trust that the dots will somehow connect in your future. You have to trust in something — your gut, destiny, life, karma, whatever. This approach has never let me down, and it has made all the difference in my life.

My second story is about love and loss.

I was lucky — I found what I loved to do early in life. Woz and I started Apple in my parents garage when I was 20. We worked hard, and in 10 years Apple had grown from just the two of us in a garage into a $2 billion company with over 4000 employees. We had just released our finest creation — the Macintosh — a year earlier, and I had just turned 30. And then I got fired. How can you get fired from a company you started? Well, as Apple grew we hired someone who I thought was very talented to run the company with me, and for the first year or so things went well. But then our visions of the future began to diverge and eventually we had a falling out. When we did, our Board of Directors sided with him. So at 30 I was out. And very publicly out. What had been the focus of my entire adult life was gone, and it was devastating.

I really didn’t know what to do for a few months. I felt that I had let the previous generation of entrepreneurs down – that I had dropped the baton as it was being passed to me. I met with David Packard and Bob Noyce and tried to apologize for screwing up so badly. I was a very public failure, and I even thought about running away from the valley. But something slowly began to dawn on me — I still loved what I did. The turn of events at Apple had not changed that one bit. I had been rejected, but I was still in love. And so I decided to start over.

I didn’t see it then, but it turned out that getting fired from Apple was the best thing that could have ever happened to me. The heaviness of being successful was replaced by the lightness of being a beginner again, less sure about everything. It freed me to enter one of the most creative periods of my life.

During the next five years, I started a company named NeXT, another company named Pixar, and fell in love with an amazing woman who would become my wife. Pixar went on to create the worlds first computer animated feature film, Toy Story, and is now the most successful animation studio in the world. In a remarkable turn of events, Apple bought NeXT, I returned to Apple, and the technology we developed at NeXT is at the heart of Apple’s current renaissance. And Laurene and I have a wonderful family together.

I’m pretty sure none of this would have happened if I hadn’t been fired from Apple. It was awful tasting medicine, but I guess the patient needed it. Sometimes life hits you in the head with a brick. Don’t lose faith. I’m convinced that the only thing that kept me going was that I loved what I did. You’ve got to find what you love. And that is as true for your work as it is for your lovers. Your work is going to fill a large part of your life, and the only way to be truly satisfied is to do what you believe is great work. And the only way to do great work is to love what you do. If you haven’t found it yet, keep looking. Don’t settle. As with all matters of the heart, you’ll know when you find it. And, like any great relationship, it just gets better and better as the years roll on. So keep looking until you find it. Don’t settle.

My third story is about death.

When I was 17, I read a quote that went something like: “If you live each day as if it was your last, someday you’ll most certainly be right.” It made an impression on me, and since then, for the past 33 years, I have looked in the mirror every morning and asked myself: “If today were the last day of my life, would I want to do what I am about to do today?” And whenever the answer has been “No” for too many days in a row, I know I need to change something.

Remembering that I’ll be dead soon is the most important tool I’ve ever encountered to help me make the big choices in life. Because almost everything — all external expectations, all pride, all fear of embarrassment or failure – these things just fall away in the face of death, leaving only what is truly important. Remembering that you are going to die is the best way I know to avoid the trap of thinking you have something to lose. You are already naked. There is no reason not to follow your heart.

About a year ago I was diagnosed with cancer. I had a scan at 7:30 in the morning, and it clearly showed a tumor on my pancreas. I didn’t even know what a pancreas was. The doctors told me this was almost certainly a type of cancer that is incurable, and that I should expect to live no longer than three to six months. My doctor advised me to go home and get my affairs in order, which is doctor’s code for prepare to die. It means to try to tell your kids everything you thought you’d have the next 10 years to tell them in just a few months. It means to make sure everything is buttoned up so that it will be as easy as possible for your family. It means to say your goodbyes.

I lived with that diagnosis all day. Later that evening I had a biopsy, where they stuck an endoscope down my throat, through my stomach and into my intestines, put a needle into my pancreas and got a few cells from the tumor. I was sedated, but my wife, who was there, told me that when they viewed the cells under a microscope the doctors started crying because it turned out to be a very rare form of pancreatic cancer that is curable with surgery. I had the surgery and I’m fine now.

This was the closest I’ve been to facing death, and I hope it’s the closest I get for a few more decades. Having lived through it, I can now say this to you with a bit more certainty than when death was a useful but purely intellectual concept:

No one wants to die. Even people who want to go to heaven don’t want to die to get there. And yet death is the destination we all share. No one has ever escaped it. And that is as it should be, because Death is very likely the single best invention of Life. It is Life’s change agent. It clears out the old to make way for the new. Right now the new is you, but someday not too long from now, you will gradually become the old and be cleared away. Sorry to be so dramatic, but it is quite true.

Your time is limited, so don’t waste it living someone else’s life. Don’t be trapped by dogma — which is living with the results of other people’s thinking. Don’t let the noise of others’ opinions drown out your own inner voice. And most important, have the courage to follow your heart and intuition. They somehow already know what you truly want to become. Everything else is secondary.

When I was young, there was an amazing publication called The Whole Earth Catalog, which was one of the bibles of my generation. It was created by a fellow named Stewart Brand not far from here in Menlo Park, and he brought it to life with his poetic touch. This was in the late 1960’s, before personal computers and desktop publishing, so it was all made with typewriters, scissors, and polaroid cameras. It was sort of like Google in paperback form, 35 years before Google came along: it was idealistic, and overflowing with neat tools and great notions.

Stewart and his team put out several issues of The Whole Earth Catalog, and then when it had run its course, they put out a final issue. It was the mid-1970s, and I was your age. On the back cover of their final issue was a photograph of an early morning country road, the kind you might find yourself hitchhiking on if you were so adventurous. Beneath it were the words: “Stay Hungry. Stay Foolish.” It was their farewell message as they signed off. Stay Hungry. Stay Foolish. And I have always wished that for myself. And now, as you graduate to begin anew, I wish that for you.

Stay Hungry. Stay Foolish.

Thank you all very much.

WHEN A LAWYER KNOWS HIS CLIENT IS GUILTY: THE COURVOISIER AND WESTERFIELD CASES

Excerpts from: UCLA School of Law Public Law & Legal Theory Research Paper Series Research Paper No. 06-44 and

Cardozo Law School Legal Studies Research Paper Series Research Paper No. 181

The Conscience of a Lawyer is a spellbinding murder mystery and courtroom drama set in London in 1840. An English nobleman, Lord William Russell, was murdered, his throat cut while he slept. The police concluded that it was an inside job. Lord Russell’s maid, Sarah Mancer awoke to discover disorder in the house. She roused the cook, Mary Hannell, and the valet-butler, Benjamin Courvoisier. They soon discovered Lord Russell’s dead body and summoned the police.The front door was unlocked. A good deal of property was missing. Needless to say, the idea that a wealthy man could be murdered in his bed by the servants was terrifying to the upper classes. As a result, the case generated intense public and media interest.

Suspicion soon fell on Courvoisier. He was originally Swiss and had worked in London for a number of years. There was strong but not overwhelming circumstantial evidence against him. The most important evidence was that some but not all of the missing property was found inside the walls of the butler’s pantry to which he had primary access. In addition, Courvoisier had said to the other servants, referring to his boss, “Old Billy is a rum chap, and if I had his money, I would not remain long in England.” On the other hand, the police could not locate the murder weapon or some of the missing silver plate. No sign of blood appeared on any of Courvoisier’s clothing. Courvoisier stoutly maintained his innocence.

He was represented at his trial in the Old Bailey by Charles Phillips, the leading criminal defense lawyer in England. Phillips, then aged 53, was Irish and had a well deserved reputation for emotionalism and flamboyance. He was opposed by John Adolphus.  According to contemporary practice, Adolphus was selected and paid by the victim’s family to prosecute the case. There was bad blood between the two lawyers, because Adolphus felt that Phillips had usurped his place as the premiere criminal lawyer of his time. He wrote to a colleague: “There was a time when you and I, Curwood, made a decent income out of this court until that Irish blackguard [Phillips], with his plausible brogue and slimy manner, deluded people into trusting him.” Amazingly to us, it was only in 1836, four years before Courvoisier, that the Prisoners’ Counsel Bill authorized defense lawyers to address the jury on behalf of defendants in English felony cases. Before that, the judge was supposed to represent the defendant! The relative unfamiliarity of the criminal defense function may explain the enormous ethical controversy stirred up by Phillips’ conduct in Courvoisier.

On the first day of trial, Phillips aggressively cross-examined prosecution witness Sarah Mancer, Lord Russell’s maid, attacking every detail of her testimony and exposing many minor differences between her testimony and previous versions of the story. It is said that Mancer never recovered from the trauma of the trial and died in an insane asylum. Phillips was equally effective in cross-examining Constable Baldwin, who denied knowing of the £400 reward being offered in the case—which everybody in London had heard about. At that point, a contemporary observer reported, the betting in the robing room was 3-1 that Courvoisier would be acquitted.

On the second day of trial, everything changed. The prosecution brought in a surprise witness, a device dear to the hearts of novelists and screenwriters. Charlotte Piolaine and her husband owned a hotel in Leicester Square. She had previously employed Courvoisier (knowing him only as Jean). Six weeks before the murder, he appeared at her hotel and reminded her who he was. A week or so later, he stopped by again and asked her to hold a package for him. Piolaine claimed that she had heard nothing about the murder or the trial until the previous day. At that point, comments by a relative caused her to associate the man who had asked her to hold the package with the defendant Courvoisier. In the presence of a solicitor, she opened the package and found the missing silver plate. And she identified Courvoisier as the man she had known as Jean.

Phillips was entirely unprepared for this witness, but his impromptu crossexamination did considerable damage to her reputation. He suggested her testimony was false; how could she not have known about the case until the previous day given that people in London spoke of little else? He also suggested that her hotel, like the others in Leiceister Square, was a gambling den. In addition, Phillips scored points in crossexamining policemen who had bungled the investigation. They claimed they had discovered bloody gloves in Courvoisier’s trunk—but only after the trunk had already been torn apart several times and nothing suspicious had been found. Rather obviously, the police had planted the incriminating items in hopes of collecting the reward.

Under existing law, Courvoisier was not allowed to testify, so the defense case consisted of a few character witnesses. Phillips delivered a highly emotional 3-hour closing argument. He contended that the evidence against his client failed to meet the reasonable doubt standard. He fiercely attacked the testimony of Piolaine and the police and, while denying that he was casting blame on Mancer, he managed to suggest that she might well have had something to do with it. Mellinkoff quotes his lengthy address almost in full, but we provide a few snippets here:

Over every portion of this case doubt and darkness rest, and you will come to a conclusion against this man at the peril of your souls. . . Gentlemen, mine has been a painful and awful task, but still more awful is your responsibility. To violate the living temple which the lord hath made, to quench the fire that his breath [hath] given, is an awful and tremendous responsibility. And the word ‘guilty’ once pronounced, let me remind you, is irrevocable. Speak not that word lightly. Speak it not on suspicion, however strong, upon moral conviction, however apparently well grounded—upon inference, upon doubt—nor upon anything but a clear irresistible bright noonday certain of the truth of what is alleged. . . I tell you that if you pronounce the word lightly, its memory will never die within you. It will accompany you in your walks. It will follow you in your solitary retirements like a shadow. It will haunt you in your sleep and hover round your bed. It will take the shape of an accusing spirit, and confront and condemn you before the judgment seat of your God. So beware what you do.

The force of these remarks was considerably diluted by the three and one-half hour summary of Lord Chief Justice Tindal. In England, the judge is allowed to sum up the evidence. Tindal’s summary, though fair, left little doubt that he thought Courvoisier was guilty. In any event, Piolaine’s evidence could not be overcome. The jury found Courvoisier guilty, his appeal failed, and shortly thereafter he was hanged. For Phillips the case had just begun. An ethical scandal engulfed him and it haunted him to his grave. Courvoisier had maintained his innocence until the second day of trial when he saw Piolaine walk into the courtroom. He then confessed his guilt to Phillips, but insisted that Phillips continue to represent him. Phillips had no idea how to handle the situation.

At first he considered withdrawal, but his co-counsel talked him out of it. Then, at co-counsel’s suggestion, Phillips consulted Baron Parke (who was assisting Lord Chief

Justice Tindal), thus breaching his duty of confidentiality. Parke told him to “use all fair arguments arising on the evidence.” In other words, go and do your job. Thus Phillips carried on, harshly cross-examining both Piolaine (whose direct examination he knew had been truthful) and the policemen who evidently had planted incriminating evidence in hopes of getting the reward (but Phillips knew they had only incriminated a guilty man).

Soon word got out that Courvoisier had confessed to Phillips during the trial. There was an immense outcry against Phillips in the press. Not only laymen but many lawyers condemned him, although he had a few defenders. The consensus was that had acted wrongly in aggressively defending Courvoisier, and his reputation never recovered.

Lest you think Courvoisier is interesting but irrelevant legal history, the current story of San Diego lawyer Steven Feldman and client David Westerfield is sobering. A seven-year old girl named Danielle van Dam was abducted from her home in the middle of the night. Substantial circumstantial evidence pointed to a neighbor, David Westerfield, who was charged with the crime. However, the police had not found Danielle’s body. During plea bargaining, the prosecutor offered not to seek the death penalty if Feldman would disclose the location of the body. Since Feldman had that information, he must have known that Westerfield was the killer.

Before a deal could be struck, volunteers found the body and the plea bargain collapsed. The case went to trial and Feldman conducted an all-out defense. In his opening statement, Feldman said: “We have doubts. We have doubts as to the cause of death. We have doubts as to the identity of Danielle van Dam’s killer. We have doubts as to who left her where…she remained. And we have doubts as to who took her.”

In cross-examining Danielle’s parents, Feldman brought out the fact that they had a “swinging lifestyle” and held sex parties in their home, suggesting that a guest at one of these parties might have killed the girl. Obviously, this was highly damaging to the parents’ reputation, yet Feldman knew the inference he was seeking to raise was false. He also introduced expert testimony from three entomologists who testified concerning the blowflies and maggots on the victim’s body in order to fix the time of her death. If the experts were right about the time of death, Westerfield could not have been the killer because he was under police surveillance at that time. However, Feldman knew that the testimony was wrong (even though the experts believed it was correct). Westerfield was convicted and is presently on death row.

The sequel to the trial mirrored Courvoisier: there was a thunderous outcry in the local press, with an editorial in the San Diego Union Tribune claiming that Feldman was as despised as Westerfield. Conservative TV commentator Bill O’Reilly ran numerous segments about the case on Fox News and filed an ethics complaint with the San Diego and the California State Bar Associations. Feldman and his family were shunned.

According to Feldman, the San Diego Bar Association’s phone answering machine said “if you want information about the San Diego Bar Association, press 1; if you want to complain about Steven Feldman, press 2.” In fact, Feldman’s actions fell within the accepted conventions for criminal defense and the storm blew over. But the public condemnation to Feldman’s conduct bears an eerie resemblance to the public’s response to the conduct of Charles Phillips in defending Courvoisier 165 years before.

What should Charles Phillips and Steven Feldman have done when they had to defend clients whom they knew beyond any doubt were factually guilty of the crime, but who insisted on a vigorous defense? This ethical issue remains hotly debated to the present day. Defense lawyers often suspect their clients are factually guilty (most of them are, of course), but they systematically avoid “knowing for sure”.

Even if a lawyer knows his client did it, a person is presumed innocent until they have been proven guilty beyond a reasonable doubt. It is not enough for the police to say he’s guilty, it’s not enough for the prosecutors to say so, it isn’t even enough for the newspapers and television to say so. Saying it is so does not make it so.

The person accused is not guilty until they have pled guilty or the crown has presented sufficient evidence on each element of the offence to prove guilt beyond a reasonable doubt. That is the way our system works. As Rumpole (and every other hack who ever donned a robe) says, it is the “golden thread” that runs through the entire history of English jurisprudence.

If the state can’t prove you guilty, then you are not guilty -even if you did it! I can already hear the cries of “foul”, “unfair”, “terrible”. But consider the alternative! What if, as in some countries, you were presumed guilty as soon as the authorities said you were and it were then up to you to prove your innocence. Does that really sound like a better system? What if you’re the one being accused? What if it were your son or daughter?

Part of the problem, of course, is that in every system there are bound to be anomalies. The larger the system, the more peculiarities there are likely going to be. The law of large number says that sooner or later every possible thing that can happen will happen. Just because the system isn’t one hundred percent reliable and accurate is no reason to scrap it. That’s like throwing out the baby with the bath water.

However, it is the occasional anomalies and glitches that grab all the headlines. Not surprisingly, not many newspapers, television stations or radio stations devote a lot of time or space to the vast majority of cases that proceed exactly as they are supposed to.

No one is particularly interested in crooks admitting their guilt and taking their lumps. That doesn’t sell papers or boost ratings (like for instance stories on Cholmondely). It is only when the system malfunctions that anyone ever takes notice. Most of the time the court system is like a good referee at a sporting event, doing its job properly and not being noticed at all.

In my mind, the bottom line is that Lawyers are charged with one directive: to safeguard the wheels of justice by ensuring that everyone gets their constitutionally mandated right to a fair trial and it is very unfair for anyone to castigate the profession for doing what they are constitutionally mandated to do.

WHY I SUPPORT PRICE CONTROLS

Price control is basically Government dictated ceiling on the prices of essential consumer goods, to keep cost of living within a manageable range. It was a very popular means of keeping inflation down in most developing countries until the 1990s.

First, let’s get one thing clear, price controls don’t work. Ancient Rome gives us one of the earliest glimpses into price controls and how they don’t work. In the late 3^rd Century B.C. inflation in Rome was at an all high. Prices increased more than tenfold in a span of a few years. A product which cost an equivalent of KSh.20 cost KSh.1000 within a period of 30 years.

Emperor Diocletian, who served from 284 to 305, attempted to stop the inflation with a far-reaching system of price controls. However, just like most price controls since then, it failed after a lot of bloodshed and to make matters worse, it had not even achieved its goal. Inflation was still high and there was nothing to sell.

The reason why price controls do not work is down to the basic need of any business venture: profit.

The higher the profit the more lucrative a business venture is and the opposite is also true. Price controls reduce the profit margins of a business thus causing it to be less lucrative. What then usually happens is that either the sellers will hoard their product causing shortages. This will lead to increases in prices in the alternative markets where the sellers will then take their product.

That is why price controls don’t work. Despite all this, the appeal of lower prices is still quite high. And it is easy to see why. Let’s take an example of the oil industry. Whenever international prices go up the pump prices go up immediately. Their reasoning is that they will require more money to buy their next shipment of oil.

However, when international oil prices come down, the oil marketers either still maintain the same level at the pump prices or cut prices by a pittance over a long duration. They do this claiming that the stock they bought at a high price has not been used up thus they end up making huge profits. An example being Kenol/Kobil’s recent 86% jump in pre-tax half year profits.

The same goes for essential goods like maize. Farmers usually sell their maize to middlemen at a low price, then the middlemen store the maize in granaries and hoard them until the prices increase then they sell. In the end, the ordinary mwananchi suffers as the price of a 2KG pack of maize flour shoots to KSh.175 from KSh.60.

I know that in the bigger picture, price controls will not work but for the interests of Kenyans the government should do more to regulate the prices at least in the short term. Companies should not be celebrating 86% jump in profits at the expense of struggling Kenyans.

In order for there to be any changes, however, there is need for the political class to give its backing and going by how the energy ministry has been tackling the issue of oil prices, good price control mechanisms for essential goods will remain but a pipe dream.

NEW LAW COULD KILL AMBULANCE CHASERS

Insurance operators and matatu owners are celebrating what they say is a victory over the so-called ambulance chasers and corrupt police, legal and medical officers after Finance minister Uhuru Kenyatta proposed to amend the country’s law on road accident compensation.

But lawyers are up in arms against the minister’s budget speech proposal to introduce what is known as a structured compensation scheme for motor vehicle accident victims, dismissing it as “unworkable” in the country.

The scheme, which entails a fixed compensation for each body part, will be pegged to individual income levels and the nature and extent of injury, according to the proposal. And irrespective of your status in society and nature or extent of your injury, you will be entitled up to a maximum Sh3 million as compensation for total disability, loss of sight or death according to a 2006 amendment.

“It is a more equitable way of compensation. It is based on an individual’s earning capacity, unlike the current system where courts give excessive awards not based on any scientific calculation,” said Leo Matundura, a former chairman of the Association of Insurance Brokers of Kenya (AIBK).

Not ripe

Lawyers, however, see it differently. “We have issues with the proposal because Kenya is not ripe for such a scheme. It only works very well in no-fault systems found in developed economies like Canada, certain states of the US, New Zealand and Sweden,” Law Society of Kenya (LSK) chairman Kenneth Akide told Sunday Business.

Saying a no-fault system does not require one to prove liability before being compensated, the LSK chairman said the country’s legal system is based on common law where one has to sue the vehicle owner to prove liability before being compensated.

“We have no framework for such a system, and it could require constitutional amendments to align it before it works. Otherwise, accident victims will go without any compensation from the unwilling insurers,” he said.

Insurers don’t want to hear any of that.

“It is a major victory against corruption. We could have afforded to lose all the other proposals we made to the minister just to get this one. It will have a big impact on the industry,” said Tom Gichuhi, the chief executive officer of the Association of Kenya Insurers (AKI).

Maintaining that the current law gives a blank cheque to corrupt lawyers, doctors and members of the Judiciary to settle even fraudulent claims, the AKI CEO said the budget proposal is the culmination of a war they have waged since 1986.

Made public

“There was even the Hancox Commission looking into it but its findings were never made public. We even prepared a bill in 2003, but it failed,” Mr Gichuhi said of the motor business, which accounts for up to 60 per cent of total insurance industry premiums.

Mr Matundura, who is also the managing director of Lema Insurance Brokers, says what the system will face are only the usual teething problems like any other new initiative.

But analysts at auditing firm PricewaterhouseCoopers warn that it is too early for insurers and matatu owners to pop champagne bottles.

“The wait for the structured compensation scheme is likely to continue as the proposal in the minister’s speech appears not to have been included in the Finance Bill 2011 or subsidiary legislation,” the PWC analysts said on Friday during their post-budget analysis.

Third party

However, on the same Thursday that Mr Kenyatta presented the Budget to Parliament, the minister published the Insurance (Motor Vehicle Third Party Risks) (Amendment) Bill 2011, which seeks to change the current Insurance (Motor Vehicle Third Party Risks) Act thereby introducing the new scheme.

Matatu Owners Association chairman Simon Kimutai said the current law greatly benefits lawyers, and that is why they oppose its review.”It is a cash cow for corrupt lawyers, doctors, police officers and magistrates. We have had cases where a 14-seater vehicle gets involved in an accident only for the owner to be faced with claims from 30 accident victims because of ambulance chasers,” he said.

He even attributed the industry’s long wait for a structured scheme to Parliament’s unwillingness to pass it since “most of them are lawyers.”Some matatu owners have had their properties auctioned and others have been sent to jail for being unable to settle claims awarded by courts after insurance companies go under because of fraudulent claims,” said Mr Kimutai.

He attributed the collapse of motor vehicle underwriters like Kenya National Assurance, Stallion, United – said to have gone under with Sh3 billion of clients’ money – Lakestar, Liberty, Access, Invesco and Standard insurance companies to the current regime.

Matatu owners, through a separate holding company, have since acquired a majority stake in Invesco, which is already operating.

It joins Blue Shield, Direct Line, Amarco and Gateway insurance companies which underwrite PSVs, although there are others that cover specific type of clients like bus companies.

However, a source speaking on condition of anonymity for fear of jeopardising her employment, called for caution.

“It is hard to trust both the lawyers and insurers, and Kenyans must be wary of anything that insurers praise. It may end up creating a loophole that the insurers could exploit to avoid settling claims,” she said.

The view is shared by the LSK boss.

“We are forced to drag the insurance companies to court because they are unwilling to settle even straightforward claims,” he said. The insurers say they are willing to pay.

“A structured system will enable us to pay the right people, the right claims in a fast way, a move that will reduce the cost of insurance and, say, in three years’ time, premiums could start coming down,” Mr Gichuhi said.