Legal practitioners in the SADC region must fight for the independence of the legal profession and the judiciary

December 15th, 2020
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By Kgomotso Ramotsho

The President of SADC LA, Max Boqwana, spoke about the attacks on the legal profession and legal practitioners, who were barred from representing their clients.

The Southern African Development Community Lawyers Association (SADC LA) held a webinar on 7 October 2020 under the theme ‘Regional Solidarity on the Independence of the Legal Profession in SADC.’ The webinar featured various speakers who shared their views about the independence of the legal profession. The President of SADC LA, Max Boqwana, in his opening remarks said that he wished the Southern African Development Community (SADC) region would have webinars to discuss issues, such as how to use technology to uplift Africa ahead of other continents, but instead webinars are being held on issues of the rights of legal practitioners to practice in the legal profession.

Mr Boqwana was referring to the interference of governments in some African countries on how legal practitioners should conduct their business. These attacks on the legal profession and legal practitioners, who were barred from representing their clients, can be seen in the media.

Mr Boqwana also paid tribute to the late human rights activist, advocate George Bizos. He pointed out that throughout his life, Mr Bizos, fought on the side of the poor, oppressed and the marginalised that in the end, his efforts have been rewarded by the Constitution and the vigilance that many are prepared to promote.

Mr Boqwana added the COVID-19 pandemic has clearly indicated the burden that is imposed on the women in the SADC region, in the form of physical and other violent forms of abuse and the face of brutality against that the legal profession with regard to female legal practitioners. He called for action to tackle the issue of gender-based violence. He pointed out that unless the state of women in the SADC region is addressed, there can never be talk of the rule of law and human rights. Mr Boqwana said that it is up to the SADC region to come up with practical implementations to deal with such matters. He suggested that a solidarity fund must be started to ensure that those who are facing the brutality, from whatever regime, do not feel alone.

Retired Constitutional Court Judge Zak Yacoob said that an independent judiciary can and must stand between the government and the people.

The keynote address of the day was delivered by retired Constitutional Court Judge Zak Yacoob. Justice Yacoob said that an independent judiciary can and must stand between the government and the people. To protect the weak and vulnerable human beings from abuse and ensure that all, including government, comply in every element of the Constitution. He added that any decision by a judicial officer who wrongly condones or justifies legislative abuse, damages democracy and the constitutional vision and that this kind of behaviour can possibly dismantle democracy.

Justice Yacoob added that an independent legal practitioner is a good human being, a caring human being, a legal practitioner who is not only concerned with legal work, but also cares about the matters of the community, acting in any possible way against injustice, oppression, exploitation and government abuse, as well as to support the community at improving the lives of the poor. He said legal practitioners in the SADC region, should support legal practitioners who are victims of abuse. He pointed out that mass action by independent legal practitioners is entirely appropriate and often necessary in the struggle for justice.

Justice Yacoob noted that many countries in the SADC region have democratic constitutions. However, he said that without an independent impartial judiciary empowering those constitutions, they sound much better on paper. He added that the Constitution of Zimbabwe portrays a real democracy and that there are some judicial officers in Zimbabwe who have been and are models of the independent judiciary. He pointed out that the independence and impartiality of a judge is normally grown while they practise as a legal practitioner, not just any legal practitioner, but a legal practitioner committed to the highest standards of integrity. A legal practitioner who complies with the ethical principal governing the legal profession.

Pan African Lawyers Union’s (PALU’s) Chief Executive Officer, Donald Deya, said there have been attacks on the independence of the legal profession, from the executive arms of government on local and international level. He added that some governments have been on the war path, attacking, discrediting, delegitimising both national and international courts, legal practitioners, bar associations and law societies when legal practitioners make decisions and take action that the government does not like. Mr Deya highlighted some of the incidents that the legal profession, the judiciary and legal practitioners have been victims of. He referred to the incident where the President of Kenya, Uhuru Kenyatta, re

ferred to the judges in the Supreme Court of Kenya, as rascals, and to Uganda and Zimbabwe, where security officers invaded courts, or surrounded courts in an intimidating manner, when they believed the court would make a decision that the government would not like.

Mr Deya said that PALU has issued statements with other members, as well as engaged in litigation, condemning attacks on the legal profession, the judiciary and some legal practitioners. He encouraged legal practitioners to unite and stand together and support one another and to stand up for the independence of the legal profession. He said the legal profession needed to speak out on these attacks with one voice, adding that in the SADC region as there is more strength in numbers than when one stands alone to fight for the independence of the profession. Mr Deya pointed out that he supports the call made by Mr Boqwana for a solidarity fund to be started to help those who need support.

Legal practitioner, Kingston Magaya, conveyed a message on behalf of the Minister of Justice of Zimbabwe, Ziyambi Ziyambi. He said that the government of Zimbabwe has supported and promoted the independence of the legal profession in Zimbabwe. He pointed out that the Constitution of Zimbabwe even makes provision for the independence of the legal profession in Zimbabwe. However, Mr Magaya said that it is important that legal practitioners should be regulated when they execute their duty. He added that the Constitution of Zimbabwe established the Law Society of Zimbabwe as an independent institution that regulates legal practitioners and promotes and upholds the ethical standards and dignity of the profession.

Mr Magaya added that the government of Zimbabwe does not interfere in the affairs of private legal practitioners and the way they conduct business. However, he pointed out that should such legal practitioners commit offences they will be investigated and brought to book, to account for their action, like any other Zimbabwean citizen. He said Zimbabwe has a principal of no discrimination and equality of the law, to which members of the legal fraternity are not immune.

Mr Magaya said that the Constitution of Zimbabwe allows for legal practitioners who feel violated to approach the court so that their issues are remedied. He added that Zimbabwe allows legal practitioners to engage freely in their profession.

President of the Law Society of Zimbabwe, Thandazani Masiye-Moyo, said the Law Society of Zimbabwe is concerned with the manner in which some legal practitioners in Zimbabwe have been treated. He spoke of an incident where a legal practitioner was arrested while trying to represent his client. He said there is a question from the legal profession if there is an overreach by the authorities. He added that the Law Society of Zimbabwe is a regulator of the legal profession in Zimbabwe, therefore, one of its mandates is to ensure that the public is protected from dishonest legal practitioners. He said it is a duty that his institution does not take lightly and to see that all legal practitioners who are dishonest or alleged to be dishonest or unethical account for their conduct.

Mr Masiye-Moyo pointed out that one concern the Law Society of Zimbabwe has, is when it becomes apparent that legal practitioners are being targeted. He added that there is an instrument of fear, residing in legal practitioners and this compromises the administration of justice, in particular, the criminal justice system, which becomes undermined. ‘We are particularly worried when there appears to be a deliberate assault on the legal practice’ Mr Masiye-Moyo said.

President of the Commonwealth Lawyers Association, Brian Speers, said that the independence of the legal profession and the rule of law is not confined to any one jurisdiction or region.

President of the Commonwealth Lawyers Association, Brian Speers, said that the independence of the legal profession and the rule of law is not confined to any one jurisdiction or region. He added that what he has found in his role as President of the Commonwealth Lawyers Association, is that all must be internally vigilant and pay continuous attention to the most important principles, which are the independence of the legal profession and upholding the rule of law. ‘Coming from North Ireland where for many years we experienced violence and social unrest, I must say we were pleased that the legal profession had maintained its independence role of challenging and representing the role of independence. The judiciary stood firm and applied legal principles independently and fairly and I very much endorse remarks made by previous speakers about how we must jealously guard this vital, precious commodity, which is the rule of law and the independence,’ Mr Speers added.

Solidarity messages

The Acting Executive Director of the Law Society of South Africa (LSSA), Anthony Pillay, read a statement on behalf of the President of the LSSA Mvuzo Notyesi. The LSSA through its member of the SADC LA expresses its support to the legal profession, especially the judiciary in the SADC region. The statement went on to state that the LSSA supports the solidarity webinar for the legal profession in the SADC region, but explicitly wants to express its support to the legal profession and the judiciary and the independence thereof in Zimbabwe, Tanzania, Lesotho and Eswatini.

Mr Pillay said attacks on the independence of the judiciary, is an attack on the rule of law and sends an incorrect message about the African continent as a whole. He pointed out that the LSSA stands by the statement it had previously issued with regards to the arrest and intimidation of human rights violations in Zimbabwe and it is very disturbing that legal practitioners are targeted, the very same legal practitioners who enhance and protect human rights and the constitutional democracy of Zimbabwe. Mr Pillay also added in his statement that the LSSA has given its approval in principle for the solidarity fund to be established.

The President of the Tanganyika Law Society, Dr Rugemeleza Nshala, said that the legal profession in Tanzania is going through a difficult time with regard to the rights of legal practitioners. He shared some of the problems legal practitioners have experienced with regard to attacks directed at them.

The Vice President of the Law Society of Swaziland, Lucky Howe, said his institution would like to give support to all the members and Bar Associations in SADC and in Africa, when it comes to all matters relating to the rule of law, with specific reference to Zimbabwe and Tanzania.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.