DRESS CODE

Clothing like other aspects of human physical appearance has a social significance,

Even within a single day an individual may need to navigate between two or more dress codes, at a minimum these are those that apply at their place of work and those at home, usually this ability is a result of cultural acclimatization.

The issue of dress code can be traced back to 17th Century England. After the death of Charles II in 1685, the barristers as a sign of mourning adopted black robes. These black robes which had pleated shoulders were later on apparently used as money sacks for briefs’ fees.

They wore jabots so as to conceal the collar of the shirt. The jabot was believed to represent the tablet of Moses. It was also seen as sign of learning/wisdom

JABOT

The wig was seen to create a sense of the solemnity and dignity of the law.

Historically members of the Bar and the Bench stood out from the multitudes by the way they were dressed.

The black robe tradition spread around the world and thus still persists today. It therefore follows that Kenya being a colony of England, was bound to inherit the customs and practices of their judicial system

However this tradition has come under sharp criticism.

Opponents of dress code have termed it antiquated and thus a constant reminder of the dark days colonialism; others have raised issues on the fact that the dress code fails the test of the modern world.

The proponents of dress code have maintained that, it gives the legal profession the desired respect from the public as a clique of learned persons who stand out as advocates of justice, as opposed to fearful individuals who display pomp to the public.

In a recent decision made by Justice Majanja in a petition filed by lawyer Andrew Barney Khakula on January 24th, 2013 the lawyer sued the Law Society of Kenya (LSK) and Attorney General arguing that the dress code violated Article 47 of the Constitution which guaranteed fair administrative action

This paper seeks to address both sides of the debate with regard to dress code.

A court room is a solemn place representing the judicial branch of the government. Judicial officers whether in or out of court have a duty to the court, the client and the society at large

The LSK rules on dress code were brought into effect in January 2013.The rules were made by the law society council which is empowered by section 18 of the Law Society Act Cap 18

To regulate the practice of law and conduct of lawyers in Kenya among them being the kind of dress code they should adhere to.

The code must be supplemented with common sense since it is not exhaustive.

LSK Mr. Mboya Apollo “any advocate who appears in court or any tribunal dressed contrary to the new dress code commits a professional misconduct.

A judge or magistrate may refuse to listen to you if you are not properly dressed. Recently, Justice Lenaola a Nairobi High Court judge refused to hear a lawyer in court after he appeared before him without a necktie on a Friday and his efforts to explain that it was a Judiciary dress-down day was rejected.

Advocates may end up facing the Disciplinary Committee and losing their practicing certificates

ARGUMENTS AGAINST:

“I can say that the judges of the Supreme court have no issues with any one appearing before the Supreme court wearing their studs. Our position is that as long as officers of the court, both lawyers and judges can appear smart a stud or indeed dreadlocks should not hinder the administration of justice.” Dr. Willy Mutunga, Chief justice and President of the Supreme Court.

Some people argue that how we look is not what matters but what we have to offer/deliver.

M. P. Vashi, Former Chairman Bar Council of Maharashtra and Goa, said that “we have passed that era when one’s status in society was judged by elaborate dress. Legal status comes through work performance and the service one renders to one’s clients

First, question begs whether the dressing code as envisioned by the law society meets the constitutional threshold as underscored in Article 27(4) which provides that ‘the State shall not discriminate directly or indirectly against any person on any ground, including [...], dress, language or birth

It is further notable that this right is also intimately related to freedom of conscience, religion, belief, opinion and political rights where dressing is a means enough of exercising either of the above mentioned fundamental freedoms.

Hence, whilst upholding proper dressing standards for advocates, a proper balance has got to be struck between the Bill of Rights and the Advocates dressing code.

Should a clash between the two emerge, the Bill of rights should always prevail, at times to the detriment of the best intentions of the Law Society’s attempt at upholding good standards.

The sentiments of the Chief Justice were thus fairly reasonable, since while balancing individual rights enshrined in the constitution on the one hand, decorum is also required of officers of the court on the other.

However, the Advocates Dress Code clearly shows that while almost achieving this balance, the Law Society seems to have overreached its bounds. The 2013 Dress code has too many restrictions for instance concerning the colour specifications.

It beats logic why two colors in our national flag could be left out. This is a fatal flaw since advocates are expressly denied to express their patriotism through dressing while in line of practice.

Religious attire is casually treated under the code. Code number 7 clearly ousts the wearing of Kanzus in court which is an attire known to be worn by persons of Muslim faith.

Code number 8 further allows advocates whose faith requires them, to wear head gear. However, it goes ahead to restrict the colour not withstanding that certain religions may require a specific colour.

The Chief Justice was of the opinion that matters of form “should not hinder the administration of justice”

Emphasis on matters of form merely amounts to raising unnecessary huddles in the administration of justice which is not fair to litigants

If matters of form can pave way for matters of substance then maybe the Disciplinary Committee can expeditiously handle matters pending before it.

Prominence should be placed on eliminating the unnecessary bars in order to unclog the system, ensuring that justice is delivered without due regard to technicality

In the wake of a progressive constitution and a dynamic society the LSK should have restricted itself to what will stand test of time. Since what is a taboo today may be the norm tomorrow.

Like men putting on studs could not have been condoned in courts just a few years ago yet today the CJ himself wears a stud.

The only foundational basis for any decision ought to be the law relating to the set of facts presented and not relating to side-shows.

PERCEPTION

One’s mode of dressing affects how one is perceived by society.

What one wears has a great impact in the way the fact finder reacts towards him. A lawyer is an officer of the Court and should not conduct himself in any manner that would obstruct or cause a delay in the administration of justice.

There is never a second chance to make a first impression. People often judge from appearances; magistrates and judges are people.

Dignity of the legal profession must be upheld. An advocate ought to distinguish themselves

from other litigants and the accused Dressing is part of dignity and professionalism

and lawyers must dress in a manner that compliments their duties as well as seriousness of the matters they are dealing with, dressing might end up influencing the decision a judge makes for your case.

When a female lawyer appears in court in a miniskirt or tight clothing it distracts not only the judge but also the other male advocates. When you wear a miniskirt the attention is diverted from what you are saying to what you are wearing, the judge or magistrate who is expected to take notes as well as observe the body behavior of the witness and the accused might miss crucial points while concentrating on your legs.

Ray Sandstrom Vs. State of Florida, 336 So. 2d 572, 578 (1978)

A member of the Florida Bar, Mr. Sandstrom was cited for contempt and refused permission to represent his clients for failing to adhere to the court’s directives on his dress.

Had he been properly dressed, his clients’ case would have been resolved much faster.

He had a duty to the Court to uphold the Rule of law and a duty to his client to ensure he handles the case expeditiously.

When the honourable Chief Justice made that statement, he was merely giving his opinion regarding the issue on dress code in the courts. He spoke on behalf of the Supreme Court judges. However, advocates appear before very many judges and magistrates across the country and each member of the bench has their own opinion with regard to how advocates appearing before the courts should dress.

As part of ethics, standards or codes of conduct are thus set out for expected behaviours to work together to try to uphold a good reputation.

The L.S.K may have gone a little extreme on what is required of advocates, however it is a small price to pay considering the standards expected of the profession

TO WHOM MUCH IS GIVEN MUCH IS EXPECTED

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