Blog Post | William Kadi (Chevening Scholar 2022/2023, University of Aberdeen, UK).
..."one day you shall come to finally learn a couple of new terms such as ‘McKenzie Friends’ and ‘Bush Lawyers’. If today is that day for you, feel free to dig in the details below"...
Introduction.
Under the sun, law rules everything around us. The problem is, not everyone knows all the laws regardless of the discipline. Whether it be the law of and for the sciences, or the laws of football, only a small group from the mass populace have the skills and knowledge to understand and practice these laws.
There are also different levels of understanding the law, take the game of football for instance. All living being of planet earth should know two basic laws – to kick the ball when passing it, and to win, the ball must be inside the opposition team’s goal, in between the goal and past the goal line (so to speak as an amateur of football). Playing football is not just about knowing the rules though, one must be physically and mentally fit, learn a few ball control skills and tactics, and the list goes on.
The same goes for practicing law and to be in the business to talk about the law. One must study for years, pass exams, take more exams, pass some with luck somehow and graduate with an academic certificate. After studies, apply to an organisation, be shortlisted, take some daunting interviews, and when successful start working under supervision – as an amateur, from the bottom of the ladder in the real world. How sweet.
To learn the tools of the trade takes a lot of commitment, sacrifice, and passion to excel! Yet one day you shall come to finally learn a couple of new terms such as ‘McKenzie Friends’ and ‘Bush Lawyers’. If today is that day for you, feel free to dig in the details below.
McKenzie Friends.
A McKenzie Friends is a person who assists someone in a court. That person (McKenzie Friends) does not need to be legally qualified.
The term McKenzie Friends originate from a 1970s painful divorce case in England, McKenzie v McKenzie. Just before the hearing, Mr. McKenzie’s legal aid certificate had been discharged. Due to that, he was to represent himself and appear in person. With arrangement from his former solicitor, an Australian barrister appeared in court to aid Mr. McKenzie. Unfortunately, the court did not allow it. The case did not result in the odds of Mr. McKenzie, and he appealed on the basis that every party has a right to have a friend appear in court, to assist by prompting, taking notes, and quietly giving advice. His appeal was successful, and the rest become an accident of history which changed civil procedure since, especially in the family court jurisdiction.
McKenzie Friends is here to stay, but they have always been around since the discovery of fire. The 1970s court case was only a breakthrough for McKenzie Friends to infiltrate the world of courtrooms and lawyers. The English Appellate court’s reasoning is just, logic, and fair in a context which is unique only to that case.
Fast forward to 2023, McKenzie Friends is found in every corner of the world and in every law compound, and they are charging fees for their service. Remember, the original McKenzie Friends was a qualified barrister who offered his service to a friend in need, and despite being initially denied in the court, the important factor to consider here is that; the service was offered gratuitously – free of charge!
The way McKenzie Friends operate now is highly unregulated and they are not required to have professional indemnity insurance, which means that clients cannot be sure whether they will be compensated if bad advice loses the client’s case. Even more so, some McKenzie Friends have set up office or are part of organizations and they are thriving under the very nose of the courts and lawyers.
Bush Lawyers.
This is the authentic Solomon Islands Pidgin-English slang for McKenzie Friends. The slight difference is that Bush Lawyers started from coconut plantations, and some believe that they are lawyers – in what sense, that should be left for in-depth research in the field of human behavioural studies and psychology. Bush lawyers are more of a combination of the original McKenzie Friends crossed with a plantation worker in the 1970s picking coconuts under mosquito-infested plantations and speaking some rusty English.
Today, bush lawyers are more common in the logging and mining industry, and they earn way more than the qualified lawyer working in the Public Solicitors Office (PSO) or the Office of the Director of Public Prosecutions (ODPP). What qualification the bush lawyer has, is something of a mystery. One thing for certain is that a bush lawyer can be found outside the court rooms in Honiara, and at times, they also put on the attire of a McKenzie Friends to sit at the bar table.
Friends or Foe?
There are genuine procedural and technical consultations led by the courts and reformist policy thinkers to provide room and leniency for McKenzie Friends with the underlying logic that everyone needs a friend to appear in court and may assist a client by providing technical advice with regards to the law.
However, the risk is higher for the McKenzie Friend to give incomplete advice or incorrect interpretation of the law to those in need. It must be noted that the discipline of law has already struggled historically with public perception, and it has earnt a not-so-stellar-reputation to be honest.
Making justice more available and accessible is a steep climb for the legal community but this is not an isolated challenge for Solomon Islands. The global report of lawyers per capita by country 2023 has enough data to show that it is a challenge in all countries, regardless of population and economic size.
With an ongoing high demand for legal advice and coupled with the high cost of attaining quality legal advice, majority of the population could not afford proper legal services. McKenzie Friends may play a significant role to assist a client, however, human ingenuity would always find something to charge for money, even if it should be free, and that’s the scary part about a McKenzie Friends.
At this juncture, it is difficult to give a verdict on the issue whether McKenzie Friends or Bush Lawyers can be a friend to the lawyer or not. One thing for certain though is that; out of ignorance, inexperience, or desperation, people can be so naïve which can lead to great un-expectations.
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