SADC LA ACGM: Supporting strong institutions for equal access to justice for all

February 20th, 2020
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By Mapula Sedutla

The 20th Southern African Development Community Lawyers Association (SADC LA) annual conference and general meeting (ACGM) was held in Zimbabwe, Victoria Falls in August 2019 under the theme: ‘Supporting strong institutions for equal access to justice for all’. Delegates who attended the conference were presented with an array of discussion papers on topics that are of interest to legal practitioners in the SADC region.

Youth Development Officer at the National Association of Democratic Lawyers, Zincedile Tiya, presented his views during the gender round table where the SADC Women Lawyers Forum was established.

Sexual harassment in the legal profession

On the first day of the ACGM, a round table discussion was held on issues that affect female legal practitioners in the region, one of the highlighted issues was sexual harassment. The ACGM called for an end to sexual harassment and bullying that prevalently affects female legal practitioners with more emphasis on young female legal practitioners through unequal opportunities in the work place. It was resolved that the Bar associations and the law societies should set up structures and clear procedures to deal with the issue of sexual harassment and bullying in the profession. Following the discussion, the SADC Women Lawyers Forum was established, and a regional steering committee was appointed. The committee will oversee gender streamlining and gender-based programming under SADC LA. The ACGM welcomed the establishment of gender round tables to address the gender agenda across the male and female members of the profession for holistic gender mainstreaming in the profession.

On the second day of the conference, President of Zimbabwe, Emmerson Dambudzo Mnangagwa, delivered the official opening address.

The duty of legal practitioners in the SADC region

On the second day of the conference, President of Zimbabwe, Emmerson Dambudzo Mnangagwa, delivered the official opening address. President Mnangagwa congratulated SADC LA on the chosen theme for the conference as it resonates with the aspiration of the United Nations Sustainable Development Goal 16, which advocates for ‘Peace, Justice and Strong Institutions.’ He added: ‘As SADC Member States, our ties are based not only on a common history, but shared hopes and aspirations. These are anchored on a better and more prosperous tomorrow. We share a common destiny in the economic, political, legal, social, cultural and religious spheres; our fates are interlinked. I am, therefore, confident that the deliberations and recommendations of this conference will further the developmental course of our SADC region and the aspirations of the United Nations. …

The region is facing diverse socio-economic development opportunities and challenges, which should give us greater impetus for closer cooperation and integration across all spheres, the legal sector included. It is my humble view that law and development are interrelated and mutually reinforcing. Hence, the relationship between the two is both essential and fundamental for sustainable development. It is, therefore, imperative that we make use of the law as a universal instrument of development. Indeed, good and functional laws and institutions ensure that all sectors of our economies and societies grow and thrive. As such, I exhort you, the legal professionals to go beyond ensuring the entrenchment of constitutionalism, the rule of law and other democratic tenets within our respective jurisdictions. You must use the law to propel the modernisation, industrialisation and integration of our economies. It is further incumbent on you to ensure that the law facilitates the empowerment of the generality of our people to administer and manage the abundant natural resources within our countries. This is over and above facilitating our people’s increased involvement in matters related to their political, scientific, cultural and social affairs.’ (To read the full speech, click here.)

Professor PLO Lumumba delivered the keynote address of the conference. His speech centered around the life of a legal practitioner during difficult times.

Being a SADC legal practitioner during difficult times

Professor PLO Lumumba delivered the keynote address of the conference. His speech centred around the life of a legal practitioner during difficult times. Prof Lumumba stressed that legal practitioners are called to make monumental decisions in their line of duty that have a bearing on access to justice. He noted that legal practitioners must ensure that the law protects all humans.

Prof Lumumba said that everyone is equal before the law and that in the face of injustice it is incumbent on legal practitioners to become stalwarts of justice. He added: ‘This is particularly important for lawyers practicing in Africa where many states have leaderships with a tendency of using the law to oppress their subjects. It is important to remain true to the oath lawyers are called to.’

Prof Lumumba cautioned the legal profession against the habit of silence. ‘The legal profession is about giving the oxygen to the principles that underpin the rule of law. If lawyers were to be silent in the face of injustice such silence would be an acquiescence to the act of injustice. Lawyers should always be heard at all critical times even if their lives are under threat – the strongest man in the world is the man who stands alone. Lawyers should openly challenge oppressive laws and regimes and must not hide behind numbers and organisations that lawyers subscribe to. The rule of law enjoins those in the legal profession to be warriors beyond bread and butter issues and be prepared to make the ultimate sacrifice and be the defenders of justice. Lawyers must be reminded that the practice of law can only thrive in an environment where the law is respected,’ Prof Lumumba added.

Prof Lumumba addressed the audience on the importance of an independent judiciary. He said: ‘It is important to have arms of government, which are separate, distinct which enjoy autonomy. History has demonstrated that a country can survive bad executive and bad legislature but cannot survive if the judiciary is not independent from another arms’ influence. It is important for lawyers to be in the fore front of making sure that the judiciary remains independent. It is incumbent on lawyers who occupy public office to remain true to the rule of law and protect the judiciary.’

Prof Lumumba noted that one of the greatest obstacles of being a legal practitioner in the SADC region is the pursuit of the fee note. ‘Lawyers must avoid abdicating their role as protectors of the society which is the whole idea of access to justice by pursuing money. I challenge members of the legal profession to remove obstacles in their jurisdictions that hinder access to justice,’ he added. (To read the full summary of the speech, click here.)

Cybersecurity and artificial intelligence

One of the topics discussed at the ACGM was centered around cybersecurity and artificial intelligence. Legal practitioner and Ethical Hacker, Simba Murondoti, noted that in this day and age legal practitioners must make the choice to adapt to technology or die. Mr Murondoti said that legal practitioners must embrace technology because, it –

  • gives one the ability to work efficiently in a high-speed economy;
  • allows one to future proof one’s practice;
  • enables one to interact on platforms ones clients are familiar with; and
  • gives one an understanding of 21st century risks.

Mr Murondoti highlighted the fact that, while legal practitioners embrace technology, they need to prioritise cybersecurity. He added: ‘Security is the costliest risk area, consider the Mossack Fonseca incident. This year alone, 22% of firms in the United States were hacked. In the near future, security shall shape the innovation conversation. In your law firms, you need to ask yourselves: Are the tools we use really secure? What is the modern law firm’s security posture? With modern hacking skills, it takes less than five minutes to successfully breach an android phone. Devices in organisations, such as laptops, routers and CCTV devices are all points of vulnerability. The question that remains is: Are you secure?’

Speaking on how to secure one’s law practice, Mr Murondoti said employees at law firms are the greatest threat point. ‘Often, the people in a law firm pose the greatest threat point. From a security perspective, the employees of an organisation and its support staff are the greatest threat points. Often people give away too much information about your organisation than they should. There is need to socialise your staff so that they keep sensitive information away from social media’, he added.

Mr Murondoti said due to the growth of cybersecurity threats, the American Bar Association has issued formal opinion 483, which deals with how lawyers must respond to data breaches. Some of its key highlights are:

  • Constantly monitor for data breaches.
  • Fix any detected data breaches.
  • Identify compromised files.
  • Notify affected clients of the breach.

Mr Murondoti added that some of the International Bar Association’s cybersecurity guidelines are:

  • Keep operating systems up to date.
  • Scan all e-mails.
  • Use secure Internet connections.
  • Enable remote erasure of data.
  • Constantly train your staff on cybersecurity.

To read the full presentation, click here.

The role of electronic management bodies

Senior Programme Officer at Africa Programme-International Institute for Democracy and Electoral Assistance in Ethiopia, Gram Matenga, presented a paper titled ‘The Role of Electoral Management Bodies (EMBs) in Strengthening Electoral Democracy in the SADC Region’. Giving background to the topic Mr Matenga noted: ‘The world over, elections are regarded as an indispensable root of democracy. They can either be used to further democracy, development, human rights and security, or to undermine them. For this reason, elections command great attention and priority in democratic countries. To be credible, the elections need to be organised to high and visible standards before, during and after the casting of votes.’

Speaking about EMBs, Mr Matenga said that several global regions recognise elections as vital to the installation or reinstallation, sustenance, and consolidation of democracy. He added: ‘Globally EMBs have also been recognised as key institutions in the management, organisation and delivery of elections. Realising the magnitude of their mandate and responsibilities, EMBs in the region considered the increasing need to learn and share experiences and knowledge, leading to the formation of the first regional EMB associations including the Electoral Commission Forum of Southern Africa Development Community (ECF-SADC) for the SADC region. … The evolution of EMBs in the SADC region, therefore, cannot be separated from the democratisation processes of the respective member states of the regional bloc, generally. It should be observed that the quest for the EMBs to ensure legitimacy and credibility of their mandate is at different levels across the region.’

Mr Matenga said that in a bid to enhance the quality of elections in the region and foster democracy, SADC adopted its revised Principles and Guidelines Governing Democratic Elections in 2015. ‘The Principles and Guidelines have been positively received and celebrated for being forward-looking and moving in tandem with continental and international best practices regarding democratic participation, political freedom and governance,’ he added.

Mr Matenga proffered the following recommendations:

  • Budget for elections and for EMB –
    • must be subject to democratic input of citizens and elected representatives;
    • must be debated and known ahead of time;
    • should not be up to the discretion of one of the actors;
    • donors’ contributions should be determined; and
    • must not be based on arbitrary assumptions.
  • Communication by EMBs should not be limited to voter education and announcing results but addressing all issues raised by political actors.
  • SADC countries should advance mechanisms for political parties funding, including enacting appropriate laws to regulate both public and private funding of parties and candidates.
  • Electoral cycle should be managed as a process not an event – conduct regular proactive constructive engagement with parties and stakeholders. The method is crucial and allows for post elections reviews.
  • Conflict prevention, management and resolution to be an integral part of EMB’s work.
  • Transparent election results management and timely announcement of election results.
  • Role of police and defence forces should be distinct.
  • Delimitation of constituencies should be a function of EMBs.
  • Political appointees should not be members of an EMB.
  • Capacity building of EMBs should be supported to enable them to meet the expectations of running technologically driven elections.

To read the full paper, click here.

The Vice-President of the Law Society of South Africa, Mabaeng Denise Lenyai, addressed delegates on cross-border practice rights for legal practitioners.

Cross-border practice rights for legal practitioners

The Vice-President of the Law Society of South Africa (LSSA), Mabaeng Denise Lenyai, addressed delegates on cross-border practice rights for legal practitioners. Ms Lenyai noted that since 2009, the LSSA has been considering the broad issue of the liberalisation of the cross-border delivery of legal services. She added: ‘The LSSA has recognised the complexities and potential risks to the legal profession in permitting the cross-border delivery of legal services by foreign lawyers without putting in place appropriate regulatory and monitoring systems. These include the risk to clients in permitting free access by foreign lawyers without the necessary knowledge about the law and legal systems of the country of intended practice (the host country) and the risk of absconding foreign lawyers. There is need for foreign lawyers to have the necessary knowledge and training, and to be obliged to adhere to the disciplinary authority of the regulatory bodies in the host country.’

Ms Lenyai pointed out that South Africa is a signatory of the founding instrument, which establishes the World Trade Organisation (WTO) and has thus also acceded to the General Agreement on Trade in Services (GATS) Agreement with effect from 1 January 1995. She said the GATS Agreement contains a ‘Most-Favoured Nation Treatment’ principle, which means that a GATS member country shall accord immediately and unconditionally to service suppliers of any other GATS member country treatment no less favourable than it accords to service suppliers from any other country.

Ms Lenyai explained further and said: ‘However, the GATS Agreement does give recognition to regional agreements, such as the SADC Agreement, which aims to facilitate and liberalise trade in services between the member countries of such region. If cross-border practising rights are granted to lawyers within the context of such a regional agreement, the obligation of the “Most-Favoured Nation Treatment” principle does not apply. Practising rights may thus be granted to legal practitioners from other SADC countries without opening the door for lawyers from other GATS member countries to claim similar concessions.’

Ms Lenyai pointed out that to determine whether the granting of certain rights will fall within the principles of a regional organisation as contemplated in GATS, it will be necessary to determine the extent and ambit of the practising rights to be afforded to legal practitioners from other SADC countries, including –

  • whether foreign legal practitioners would be allowed to provide services in all legal disciplines and practice areas in all the SADC countries;
  • whether foreign legal practitioners would be allowed to use all modes of service delivery in all the SADC countries, namely, also personal presence, commercial presence (setting up an office); and
  • whether such practising rights would be reciprocal rights.

To read the full address, click here.

National Coordinator for the National Association of Democratic Lawyers Gender Desk, Seeham Samaai, was one of the guest speakers during the discussion on the need for a SADC Young Lawyers’ Forum.

Shrinking civic space

Chief Executive Officer of the Pan African Lawyers Union (PALU), Donald Deya presented a paper titled: ‘Shrinking Civic Space – the Role of the Legal Profession’. Mr Deya said that there are some parallels and interlinkages with the issue of independence of the judiciary and of the legal profession. He added ‘But the focus here is different: How are we protecting the space for everyone else to be informed, to be able to express themselves, associate and assemble physically and virtually. Civic space is under attack, deliberately, across the world, including in Africa. The idea of being an active citizen is under attack. Our governments want robots, who do what they are told, work hard on the assembly line, pay taxes and shut up.’

Mr Deya noted that legal practitioners need to protect the rights of other citizens to seek information, express themselves, associate and assemble. Speaking about what the legal profession can do to foster this, Mr Deya said in times of crisis international lawyers’ associations can have –

  • petitions;
  • issue statements and letters (open and closed); and
  • conduct fact-finding/solidarity missions, trial observations and amicus

He added: ‘I recommend that international lawyers’ associations should develop a long-term approach to having a sustained dialogue with the legal profession: individuals and institutions, beyond moments of crisis.’

To read the full presentation, click here.

  • To read the official communique from the conference, click here.
  • To view a picture gallery from the conference, click here.

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