The legal profession re-capturing its place in society discussed at PALU conference

September 1st, 2017
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Minister of Justice and Correctional Services, Michael Masutha, was the guest of honour at the opening ceremony of the PALU conference.

By Mapula Sedutla

The Pan African Lawyers Union (PALU) held its 8th annual conference and 5th general assembly from 5 to 8 July in Durban under the theme: ‘The legal profession: Re-capturing its place in society’.

The proceedings of the conference began with an opening ceremony on 5 July. Speaking at the opening ceremony, Co-chairperson of the Law Society of South Africa, Walid Brown, said despite the prevailing mood in South Africa at the time, the silver lining remains that the rule of law is upheld in the country. Mr Brown added: ‘There is no suggestion that the rule of law will not be upheld, there are no calls to arms or revolution no matter how upset people are with the president. … Of course this could change, but South Africa remains an example for Africa.’

Co-chairperson of the Law Society of South Africa, Walid Brown, welcomed delegates to the 8th annual PALU conference. Mr Brown, also made a presentation on cross border insolvency and debt recovery in Africa.

Partner at Morrison & Foerster, representing the Cyrus R Vance Center for International Justice, New York City Bar, Carrie Cohen, noted that the Vance Center advances global justice by engaging lawyers to create an ethically active legal profession. Ms Cohen added: ‘It is lawyers that have a special responsibility and skills to keep the society civil and ensure that democracy prevails. It is only together that we can share our values and bring about positive change.’

Delivering the keynote address at the opening ceremony, President of Global Financial Integrity (GFI), Raymond Baker, said that GFI is focusing on corruption and working with governments to address issues that are connected with corruption. Mr Baker added that he worked with former President Thabo Mbeki and other stakeholders across Africa to address illicit financial flows (IFF) challenges.

Mr Baker noted that the panel that Mr Mbeki chaired found that illicit finance transfers hamper development efforts throughout the continent. He said the panel requested the Economic Commission for Africa of the United Nations to estimate the financial impact of IFF. The commission found that between 2001 and 2010 African countries lost up to US$ 407 billion from trade mispricing alone. At the same time, illicit outflows from Africa were found to range from at least US$ 30 billion to US$ 60 billion a year.

Mr Baker said the findings revealed that the illicit flows through commercial channels was at the core of the problem. ‘Yes, for 40 years people have been singling out African corruption as the problem. We are saying yes, it is a problem, but it is not the only problem,’ he said.

Mr Baker said the GFI has identified several initiatives that will address the problem. These include the creation of beneficial ownership registries that would see central banks throughout the continent instructing smaller banks to provide lists of all their account holders within six months or close them down. ‘We also recommend the adoption of legislation that targets trade-based money laundering,’ he added.

Speaking as the guest of honour at the opening ceremony, Minister of Justice and Correctional Services, Michael Masutha, noted that the state has been vulnerable to all forms of exploitations but the legal profession seems to be the exemption. Mr Masutha added that there is a real need for the law to be restructured to ensure it is accessible to everyone. ‘We write the rules and very often we tailor them to suit our own peculiar requirements – so much so that some of us cannot make sense of the small print. We need to move towards a society that is inclusive by ensuring that the laws we write and the institutions we create to ensure their implementation are accessible to ordinary people. The law must be as freely accessible as fresh air,’ he said.

Speakers of a panel that discussed gender equality in the legal profession from left: Partner at Morrison & Foerster, representing the Cyrus R Vance Center for International Justice, New York City Bar, Carrie Cohen; Corporate Affairs Director at Heineken South Africa, Zodwa Velleman; Managing partner at Goodshare & Maxwells,
Okeoma Ibe; and advocate Jemimah Keli.

Getting to equal – women in the legal profession

On the second day of the conference, a panel discussion on gender equality in the legal profession was held. Speakers during the panel included Ms Cohen; Corporate Affairs Director at Heineken South Africa, Zodwa Velleman; Managing partner at Goodshare & Maxwells, Okeoma Ibe; and advocate Jemimah Keli.

Ms Cohen highlighted the importance of having a network of support. ‘As a female lawyer it is important to have a network of people you can turn to for advice, men and women. Build up a board of advisers from different types of people that can help you in different ways,’ she said.

From left: President of the General Council of the Bar Tunisia, Ameur Meherzi; and President of the Law Association of Zambia Linda Kasonde at the closing ceremony of the PALU Conference.

Ms Velleman noted that she is a firm believer in having a network of mentors as she is still in contact with her principal, who is her mentor. She said the major difference between men and women is that women fear failure and believe that it is catastrophic and would not recover from it. ‘If men fail, they get up and keep going,’ she added.

Speaking about gender stereotypes, Ms Keli said: ‘There are two attributes a lawyer should have; assertiveness and competence. But a woman who is assertive will often be labelled aggressive, whereas it will be seen as a positive thing in a male lawyer. And women have to prove their competence, but for men it will be assumed.’

Ms Keli also emphasised the importance of mentorship. She noted that in various jurisdictions the majority of senior lawyers are male and may not be available to mentor young female lawyers because of the connotations associated with being seen with young females. ‘This then perpetuates the notion of the old boys club because young female lawyers will not be able to advance,’ she added.

Improving regulatory and operating environment for ICT in Africa

Speaking on a panel on the topic of operating ICT in Africa, Managing Partner at A & E Law Partnership and Chairperson of the Board of Public and Private Development Centre in Nigeria, Chibuzo Ekwekwuo, said that as the lines between ICT services become increasingly blurred and legislators across the continent find the need to revise existing policy frameworks to respond more efficiently to the changes, the intervention of lawyers in navigating through the resultant multiple challenges becomes critical. ‘Lawyers can help demystify the minefield of intersecting technologies for key stakeholders, governments and consumers. … New regulatory frameworks also have to take into account a range of other laws relating to copyright, competition, consumer protection, cyber-crime, privacy, etcetera, which will require the intervention of lawyers,’ he added.

Former president of the Gambia Bar Association, Salieu Taal, who was also one of the founders of the #GambiaHasDecided movement said at a broader level, Africans had to embrace technology as one of the most important pillars of development.

Former president of the Gambia Bar Association, Salieu Taal, who was also one of the founders of the #Gambia­HasDecided movement said at a broader level, Africans had to embrace technology as one of the most important pillars of development. ‘Through the use of technology we can change the way services are delivered and how business is done. We need to think of technology beyond our laptops and gadgets; we need a new way of thinking so that from a small cable in a village in Gambia, for example, we can access resources at Harvard University. As lawyers we can help in designing a framework that will empower our governments in achieving these goals and help get Africa onto the technology bandwagon,’ he said.

Speaking about the #GambiaHasDecided movement, Mr Taal said the movement was formed to bring Gambia together and make the country reflect on its democracy and its future.

Sarah Mhamilawa, from the Tanzania Network Information Centre, said the creation of internet domain names could lead to disputes over intellectual property rights. Ms Mhamilawa said in Africa, most countries had adopted the American-designed universal dispute resolution mechanisms with regards to domain name usage without consideration of local contexts. ‘This presents an opportunity for lawyers to devise an Africa-specific dispute resolution mechanism suitable for the needs of countries on the continent,’ she added.

Law practice management

Speaking at a session on law practice management, President of the KwaZulu-Natal Law Society, Umesh Jivan, said that one area of concern for practicing lawyers should be whether they are adequately insured.

Speaking at a session on law practice management, President of the KwaZulu-Natal Law Society, Umesh Jivan, said that one area of concern for practicing lawyers should be whether they are adequately insured. Mr Jivan added that meeting the regulatory requirements of the jurisdiction a lawyer has chosen to practice in should be another area of concern.

Mr Jivan noted that in the past advertising was taboo for lawyers, however, that is no longer the case. ‘We have accepted that lawyers can advertise their skills. If you do not market your skills it will be difficult to secure your income and the reality is that your practice will have to close. … There are many ways a lawyer can advertise their skills now, for example you could write articles for newspapers. Also, lawyers should not be afraid to use computers and the Internet. Be on social media otherwise you will be considered a dinosaur,’ he added.

Cross border insolvency and debt recovery in Africa

During a presentation on insolvency and debt recovery in Africa, Mr Brown noted that for lawyers, recovering money in a jurisdiction they do not practice in has had limited success. ‘That is why it is important to attend conferences, such as the PALU conference, because you might meet a lawyer that might assist you when you have a matter in their country,’ he added.

Former Co-chairperson of the LSSA, Max Boqwana held a roundtable discussion with young lawyers from across Africa.

Young lawyers’ roundtable

Former Co-chairperson of the LSSA, Max Boqwana held a roundtable discussion with young lawyers from across Africa. Mr Boqwana addressed the important role young lawyers play in insuring that the rule of law is upheld on the continent. He asked where Africans are going wrong as the continent has the potential to dictate and satisfy the energy and feed the needs of the world. ‘Why the continent can own so much, yet control so little? We need to answer these questions honestly and truthfully. Failure by your generation will make you as culpable as those that enslaved our continent, colonised it and the post-colonial leaders who sought to treat our various countries as their personal fiefdoms and the masses of our people as their subjects,’ he said to the young lawyers.

Mr Boqwana added that legal professionals are always considered to have questionable ethical standards. ‘The attitude doubtless derives from the perception that lawyers are mere self-serving agents of the rich and powerful and that they are motivated by greed and personal ambition. Yet the public and the media often overlook the existence of lawyers who are the exact opposite of this stereotype. This may be discouraging, but those who choose the side of justice to power, privilege and prestige, must understand that theirs is the payment of eternal debt to humanity. These are the lawyers who believe that justice is their calling and that it is their duty to serve the ideals of equality and the cause of the wretched in our society,’ he said.

Chief Executive Officer of PALU, Donald Deya, addressed the issue of litigation in African international courts and tribunals.

Litigation in African international courts and tribunals

On the third day of the conference, Chief Executive Officer of PALU, Donald Deya, addressed the issue of litigation in African international courts and tribunals. Mr Deya noted that the first body to suggest that due consideration should be given to an additional international criminal jurisdiction for the African Court was the group of African experts, who were commissioned by the African Union (AU) in 2007 to 2008 to advise it on the merger of the African Court on Human and Peoples’ Rights with the African Court of Justice. ‘However, the genesis of the current discussion is not the contemporary debate about Africa’s relationship with the International Criminal Court or, more specifically, the debate around the arrest warrant for [Omar] Al-Bashir and the subsequent AU request for a deferral. Rather, the current process emanated from three contemporaneous issues: The AU Member States’ dialogue on the possible misuse of the Principle of Universal Jurisdiction; the challenges with Senegal’s impending prosecution of the former President of Chad, Hissene Habre; and, the need to give effect to Article 25(5) of the African Charter on Democracy, Elections and Governance, which requires the AU to formulate a novel international crime of “unconstitutional change of government”’, he added.

 Mapula Thebe NDip Journ (DUT) BTech (Journ) (TUT) is the editor of De Rebus.

 This article was first published in De Rebus in 2017 (Sept) DR 6.

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