SADC LA reaffirms its commitment to promote harmonisation of laws and mobility of legal practitioners

June 10th, 2022
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The Southern African Development Community Lawyers Association (SADC LA) held its 21st Annual Conference and General Meeting (ACGM), in Johannesburg South Africa (SA), in March 2022 under the theme ‘Equipping the Legal Profession for Post COVID-19 Human Rights Restoration and Economic Recovery – Adapting Beyond the Pandemic.’ The speakers at the ACGM included dignitaries from all over the SADC region who deliberated about thought provoking matters and shared their knowledge on how the SADC region can work together to uphold the rule of law.

Outgoing President of the Southern African Development Community Lawyers Association, Max Boqwana, during his open address at the conference

In his opening address, the outgoing President of the SADC LA, Max Boqwana, said the organisation was delighted to be joined by the Minister of Justice and Correctional Services, Ronald Lamola, the Bar leaders, ­­members of the various councils in respective countries, the partners of the SADC LA and guest speakers to –

  • re-affirm the SADC LA’s commitment to the rule of law and human rights in the region;
  • re-affirm the SADC LA’s commitment to promote harmonisation of laws and mobility of lawyers in the region;
  • assess strategies to strengthen the legal profession and assertion of the independence of the judiciary;
  • re-affirm the SADC LA’s role in the promotion and deepening of democracy in the region; and
  • demonstrate commitment to act in solidarity with one another to achieve these objectives.

Mr Boqwana said those gathered at the conference were there to interact with the elected councillors and to revisit the tasks that they had given each other in 2019 when the SADC LA conference was held in Victoria Falls. At that conference the SADC LA committed to –

  • strengthening the administrative capacity of the SADC Secretariat and financial sustainability to be able to respond to the intractable challenges facing the region;
  • ensure continuous support of respective law societies to be able to meet their constitutional obligations;
  • ensure urgent interventions in cases of possible abuses of human rights in the region, including by the respective executives; and
  • design programmes and activities that will continuously generate interest of its members to its work.

He said the gathering at the conference was meant for exchanging ideas, exploring possibilities, and opportunities, and building and strengthening friendships among one another.

Mr Boqwana asked delegates to elect new leaders that will deal with modern day challenges and take the association to even greater heights. ‘We are glad that, 22 years later, we return exactly to the same place where leaders present here today like our former Presidents Carlos Cuio; Sternford Moyo, [Judge] Vincent Saldanha, [and] Samuel Earnshaw, to develop the idea of a profession that can speak in unison in our region, in solidarity with one another not only for our own interests but those of the peoples of this region,’ Mr Boqwana said.

He pointed out that delegates from SA like him, understood the importance and relevance of solidarity, for they are the beneficiaries of the sacrifices of millions in the SADC region that brought about liberation in the continent. ‘We have always been inspired by leadership beyond our borders. … Standing on the shoulders of [the] greatness of our ancestry, we are entitled to reject mediocre, abusive, and selfish leadership,’ Mr Boqwana added.

Mr Boqwana pointed out that the conference took place in the context of international conflict between those who argue for multipolarity and unipolarity, as represented by Russia on the one end and the North Atlantic Treaty Organisation members on the other end. He said it is a war in which other countries are spectators but sadly those countries will be the war’s casualties as it will be reflected in the prices of oil and food, and in the repositioning of political and economic relations and sadly the immigration approaches in Europe. ‘For us we must ask a question what about international law and multilateral institutions which are so vital for the very survival of our own weak countries? Hopefully our panellists, on the global justice debate, will help us answer these difficult questions,’ Mr Boqwana added.

He said that the conference gathered in the context of the 20th year of existence of the African Union (AU). He added that the AU raised hopes for the African continent to advance good governance, democratisation, peace building, advanced development, and prosperity for millions of African masses. However, Mr Boqwana added that the question is ‘whether we are on course towards a peaceful and prosperous Africa.’ He pointed out that never-ending challenges in Zimbabwe and the growing instability and criminality in SA, which manifests itself in the violence against other nationals, is the exact antithesis to why the conference was held.

Mr Boqwana said: ‘Our close relations that we have now forged with the SADC Secretariat must be used to make the necessary interventions in some or more of these areas instead of being spectators. We must, therefore, dare our own conditions and ensure that we continue making history, in that during the period under review we were thrust into action as –

  • we intervened in Zimbabwe both in responding to mass arrests and wanton detentions, during the 2019 protests;
  • we intervened in Angola in the matters of police abuse and join our colleagues on the streets and in various engagements to ensure that the possibility of a free and open Angola does not elude us;
  • we intervened in Lesotho in assessing its state of the Judiciary, the role of the Department of Justice and the legal profession in the national reforms process;
  • we intervened in Madagascar to ensure free and fair elections and to provide a proper model for credible elections and redefined the role of the Judiciary in elections process, which continues to be a challenge in our region where elections have become a hazardous act rather than an act of freedom;
  • despite our continuous interventions in Eswatini the situation remains volatile. The organisation is inspired by the role its members play there even in the midst of unprecedented violence – continue with bravery and consistency to fight for a better Kingdom of Eswatini, in our last AGM we honoured our friend and comrade Tundu Lissu for all the difficulties and including attempts on his life by the Tanzanian authorities, we are glad that today Tanzania is not on our agenda for the wrong reasons’.

Mr Boqwana said as these interventions were made, the situation was made more difficult by the negative impact of the COVID-19 pandemic, which deepened levels of poverty and unemployment in the SADC region and saw unprecedented levels of gender-based violence. He added that to this end, the SADC LA have developed a response method on gender-based violence and designed a model law for the region in partnership with the SADC Parliamentary forum. He pointed out that the SADC LA undertook detailed research on the criminalisation of poverty, in this instance produced a report that can be used in the region as a model response to this new pandemic.

Mr Boqwana said: ‘We have produced a detailed report on the impact of COVID-19 on access to justice, especially for sexual offences victims. It is important that as we worked on this, it became clear to us that there are many positives that we can learn from these experiences – in particular, the use of technologies and possible reduction of costs in litigation. In view of the ongoing challenges to the independence of the profession and the judiciary, we have developed a comprehensive term of reference/barometer for intervention and a standing “intervention force” of preeminent jurists in our region, led by Justice Dingake. To support this effort, we also established a rapid intervention fund, so that we can reduce our dependence on donors for this purpose. We would urge the incoming executive to strengthen and grow this fund, to ensure that our interventions are meaningful.’

Mr Boqwana added that more importantly the organisation urges all its members to engage with their ministries of justice to –

  • seek support for the creation of regional seats for international commercial arbitration and investment dispute resolutions;
  • to support a proposed regional framework for liberalisation of trade in legal services. Both of these are necessary for the success of Africa’s free trade area; and
  • create an apex regional tribunal with an expanded mandate.

Mr Boqwana said it has become clear to the SADC LA that, in order to succeed, the organisation needed partnerships with organisations and institutions that share the same values. He pointed out that the SADC LA partners include the Embassy of Switzerland, the Open Society Initiative for Southern Africa, the International Bar Association, the Pan African Lawyers Union, and LexisNexis. He said this communicates an important message that the SADC LA resonates with their values. He said this is the challenge for the new leadership of the SADC LA to consolidate these relations. Adding that there are challenges that remain to be tackled and that it is for the new Council to ensure that the SADC LA must be deliberate in their efforts to be self-sufficient and self-reliant. Moreover, that it is important that the SADC LA invest its efforts and its resources to what they believe.

Minister of Justice and Correctional Services, Ronald Lamola, spoke at the Southern African Development Community Lawyers Association conference in March 2022.

Sharing experiences on the rule of law

Mr Lamola said that the SADC LA, has throughout the years lived to its values of –

  • contributing towards upholding and maintaining respect for the rule of law and fundamental liberties;
  • promoting the respect of human rights, especially the rights of women, people living with disabilities and children;
  • ensuring proper administration of justice; and
  • working towards harmonisation of SADC countries’ respective legal systems.

He added that the association provides an opportunity for lawyers in the SADC region to share experiences on the rule of law, and best practices. ‘On the matter of best practice, I have noted that in recent times, this body has been reviewing the Judicial Service Commissions across the SADC region. I think this a commendable task.

I am sure you eagerly followed the performance of our Judicial Service Commission (JSC) in SA as we sought to appoint a new Chief Justice. One of the issues, which have arisen from these latest proceedings, is whether the time has come for us to have a code of conduct for JSC members,’ Mr Lamola said.

Mr Lamola said the SADC region must examine whether the wheels of justice in our region are turning at an acceptable pace, or the lived experiences of clients confirm whether the wheels have worn out. He pointed out that the conference should investigate the following questions:

  • What are the systematic barriers that we must tackle within the legal profession in the region?
  • What is the state of the justice system in Africa?
  • What are the noteworthy advances that we can take home?

Mr Lamola said that many industries have been affected by COVID-19 and most economies have contracted, but one industry which has not stood still, is the legal profession, the wheels of justice across several countries have continued to turn. He added that equally, he is appreciative of the fact that where those who are clothed with electoral power or even state power may have acted outside the rule of law, they could still be held accountable during the height of the pandemic across the SADC region.

Mr Lamola added that access to justice within the region was not curtailed by the pandemic although rights were limited to some extent by efforts to manage COVID-19. ‘So, the question arises, do human rights have to be restored?’ Mr Lamola asked. ‘If the answer is yes, the next question should also be, what is our role in upholding human rights in the first place,’ Mr Lamola said.

Mr Lamola added: ‘What we have seen and experienced is that where there has been investment in [information and communications technology], this has proven to be an invaluable factor in the administration of justice. But even then, our over reliance on imported technology from outside of the African continent is something that should concern us all.’ He said that various experts across the globe are of the view that the advancement of technology will disrupt the legal profession in an unprecedented manner. He pointed out that Richard Susskind, renowned author on the future of legal services, predicted legal practitioners would submit evidence and arguments to judges online, moving judgments from the courtroom to online platforms. ‘He further wrote that technology would help solve disputes without needing traditional court system. The outcomes of court decisions would be based on past decisions by using predictive analytics,’ Mr Lamola said.

Mr Lamola pointed out that COVID-19 has forced us to reimagine how justice is administered in terms of adapting to technological trends. He said there might be further adaptions to alternative technological methods of practicing which have significantly impacted other professions. This could enhance efficiencies in the legal profession.

Mr Lamola took the opportunity to assure delegates from neighbouring countries that South Africans are not xenophobic. ‘We noted that where our law enforcement has been found wanting, some vigilante groups have attempted to scapegoat this by fanning conflict between local citizens and our fellow brothers and sisters from the region,’ Mr Lamola said. However, he added that it is expected that everyone has the obligation to observe the rule of law in whatever nation they may find themselves. This means ensuring that we have the required documentation to enter and exit other states, as well as observing the law in those states.

Mr Lamola spoke about violence against women and girls in the SADC region. He said that in an article by the United Nations Population Fund, it was revealed that the East and Southern African region has high rates of sexual violence against women and girls. He added that the article stated that in seven countries, around 20% of the females aged 15 to 24 years reported that they had experienced sexual violence from an intimate partner. He pointed out that sexual violence against early adolescents aged 15 and below is highest in conflict and post conflict countries in the SADC region.

Mr Lamola said the article further highlights that the high rate of violence against women and girls in the region is maintained by the persistence of harmful gender norms, alcohol use, and overall increased poverty, violence in urban slum areas and conflict areas.

Mr Lamola pointed out that according to the article, most countries in the region do not reflect their commitments as expressed in numerous international conventions and treaties they are party to in national legislative policy and action. Furthermore, violence against women and girls is exacerbated by the fact that sometimes perpetrators are closely related to their victims and families conspire to conceal the abuse.

Mr Lamola said that the SADC region should prioritise and enhance pro-women policies, dismantle patriarchy, and entrench the rights of women. ‘We must drive social change to create better lives for women and girls,’ Mr Lamola added. He pointed out that in the words of former President and legal practitioner, Nelson Mandela, ‘for every woman and girl violently attacked, we reduce our humanity. For every woman forced into unprotected sex because men demand this, we destroy dignity and pride. For every moment we remain silent, we conspire against women.’

Rule of law to be accessible to all

Head of Africa and Partnerships at LexisNexis South Africa, Winston Boikhutso, told delegates at the Southern African Development Community Lawyers Association (SADC LA) Annual Conference that LexisNexis is as committed as the SADC LA to advancing and promoting the rule of law, human rights, democracy and governance in the SADC region and beyond.

Head of Africa and Partnerships at LexisNexis SA, Winston Boikhutso said LexisNexis is as committed as the SADC LA, to advance and promote the rule of law, human rights, democracy, and governance in the SADC region and beyond. He added that LexisNexis believes that the rule of law is the very foundation for the development of peaceful, equitable and prosperous societies in which the law can be accessible to all. Furthermore, everything the organisation does as a business advances the rule of law around the world, he said. Mr Boikhutso noted that this was in line with the organisation’s vision, which is ‘enhancing the potential of the African continent by advancing the rule of law’.

Mr Boikhutso said that the World Justice Project defines the rule of law as a durable system of laws, institutions, norms, and community commitment that delivers accountability, just laws, open government, and accessible and impartial dispute resolution. He added that for the rule of law to be effective, there must be:

  • Equality under the law: All people, businesses and governments are accountable, and the law applies to everyone in the same way, no matter who you are.
  • Transparency of law: Laws must be clear, precise, affordable, and accessible while protecting fundamental human rights.
  • Independent judiciary: An independent judiciary ensures equality and fairness of law between people and public officials.
  • Accessible and affordable legal remedy: There must be access to timely resolution in a court of law.

African countries will be able to become more competitive if we can pro-actively strengthen and uphold the rule of law on the continent. ‘We will then be better able to attract more foreign direct investment, thus enabling the continent to take its rightful place on the global stage,’ Mr Boikhutso added. He said that by improving transparency and accountability, countries can begin to stamp out corruption. By investing in more legal resources, countries can also increase access to justice, providing greater fairness and equality.

Mr Boikhutso pointed out that from a global business perspective, the rule of law provides a legal foundation for conducting business in a reliable and predictable manner. He said it holds people, businesses, and government accountable for their actions. He added that recently, LexisNexis released the first-ever ‘Advancing the Rule of Law in Africa’ (www.lexisnexis.co.za) in partnership with Africa Legal, which is a comprehensive body of research that endeavoured to evaluate the strength of the rule of law in Pan African countries. He noted that in the report, Africa Legal and LexisNexis surveyed more than 280 legal professionals – from private practice lawyers and in-house counsel to government employees and members of the judiciary – in 24 African nations to understand what the rule of law means in practice and its current level of development.

Mr Boikhutso pointed out that the survey reveals –

  • the major hurdles that African countries need to overcome to improve the rule of law;
  • the impact of the COVID-19 pandemic on development;
  • who has the most responsibility for advancing the rule of law; and
  • how likely is it to change over the next five years?

He said that when asked about the hurdles that African countries need to overcome to improve the rule of law, 52% of respondents identified corruption as the number one impediment, which can contribute to the improvement to the rule of law. Mr Boikhutso said the report unearths where in Africa legal practitioners are most hopeful for the strengthening of the rule of law, what the greatest hurdles are to this, and who they believe has the greatest role to play in driving forward the rule of law agenda. ‘We know that while the government must lead from the front, it is incumbent on all stakeholders – the general population, as well as lawyers, the judiciary, and legal organisations – to share in that undertaking and proactively seek to drive change. Private citizens need to be aware of the importance of the rule of law. They need to hold leaders and institutions accountable to act in line with the law. Citizens should participate actively in the framing of the constitution so that it reflects their aspirations, Mr Boikhutso said.

Mr Boikhutso pointed out that he looked with great interest at the theme of the SADC LA conference. He said that the unprecedented events of the last two years have certainly called for agility and adaptability from all quarters. He added that apart from being a public health emergency, the COVID-19 pandemic has largely been a global crisis of public law and human rights. He pointed out that countries have adopted widely varying legal means in their responses to the COVID-19 pandemic. Borders were closed and state of emergencies declared thereby limiting human movement. He said that major ethical challenges have been raised and difficult decisions have been taken. He noted that there have been complex considerations for legal professionals and extreme strain placed on legal systems worldwide, as the key principles of the rule of law have been tested. ‘It no longer was safe to pass an object or a file to the next person. The pandemic has also delivered certain silver linings. One of these has been the rapid adoption of technology, almost overnight, across society and business sectors. The increased use of technologies like social media, video-chats, and Zoom, of course helped us to build and maintain relationships during the most uncertain periods of strict lockdowns and social distancing,’ Mr Boikhutso said.

Mr Boikhutso said that the subsequent shift towards remote working or hybrid working models now continues to impact workplaces. He asked what this means for the post pandemic 21st century lawyer? He said legal technology means that now more than ever before, the law and legal practitioners must advance rapidly to prepare for the future. Mr Boikhutso added that late last year LexisNexis and the Law Society of South Africa released the ‘2021/2022 LexisNexis Legal Tech Report’ (www.derebus.org.za), which shows that the legal profession is embracing the digital age with alacrity. The study examines a raft of issues, challenges and concerns facing the legal sector. Notably 27% of participating law firms said they have increased investment in processes and technology in the past five years with 30% saying they plan to do so in the next 12 to 24 months.

Mr Boikhutso said that Minister Lamola implored legal professionals to embrace and explore the use of artificial intelligence and machine learning. ‘We can assure you, that as LexisNexis, we continue to invest in research technology to enhance the gathering, organising and analysing of data to enable the legal professional to have critical insights through machine learning and artificial intelligence. We want you to be able to provide legal services and solutions, without worrying about being usurped by technology. But rather than beginning with technology, you should always use technology as an enabler to support the human element. Legal technology is being used with increasing frequency to improve speed and efficiency in the legal process,’ Mr Boikhutso added.

Various representatives of organisations in the legal profession with Minster Ronald Lamola at the Southern African Development Community Lawyers Association’s 21st Annual Conference and General Meeting held in Johannesburg, South Africa in March 2022.

Promoting civic space and the rule of law

In one of the breakaway sessions, panel members discussed ‘The role of Bar associations in promoting civic space and the rule of law’. Programmes Manager at the Zimbabwean Environmental Law Association, Nyaradzo Mutonhori, said that governments are shrinking the civic space and that the shrinking of the civic spaces is accompanied by erosion of the rule of law. ‘We find ourselves on what others have called the edge of impunity, characterised by increasing corruption, lack of transparency and suppression of public debate. Regarding the SADC region integration, Ms Mutonhori said the focus should be on building modern democracies where there is peace and sustainable development. She spoke of compromised judicial systems with limited impartiality and asked about the role of Bar associations in such a context, where there is systemic shrinking of civic space, accompanied by erosion of the rule of law.

Ms Mutonhori pointed out that Bar associations can no longer assume that their members are willing to take appropriate action to uphold the rule of law and human rights. Bar associations need to motivate their members to take appropriate actions to uphold the rule of law and human rights. In a context of shrinking civic space and erosion of the rule of law.

Ms Mutondi added that Bar associations are important because they open civic space through another window, namely, litigation, as litigation will always remain relevant to enhance and protect human rights. Bar associations can also continue to ensure that litigation remains open by offering cheaper ways for litigation for the marginalised.

Regional economic integration

Another key topic that was discussed was regional economic integration.

Head of Procurement in the Ministry of Justice in Zambia, advocate Nchimunya Bernadette Malilwe, said that the ideal framework for economic integration should include the provision for the creation of institutions empowered to make decisions and laws that have a binding effect on member states, as well as natural and legal person within the community. She added that the ideal law should provide for the creation of dispute resolution institutions, the interpretation of the SADC Treaty and community law. Ms Malilwe noted where laws have no binding effect, there is no obligation to domesticate laws locally and member states will pick and choose which obligation they wish to comply with and when. She pointed out that sadly this situation is faced currently in the SADC region. She added that there are many challenges in the legal framework, including:

  • The lack of the obligation to domesticate the law of the SADC locally slows down the progress of integration and further hinders the uniform of application of community law.
  • The slow domestication of agreed policies and legal frameworks for countries that choose to domesticate.
  • The lack of clarity on the SADC Treaty and national laws.
  • The effect of member states not recognising the SADC Tribunal as the institution meant to enforce the treaties and its protocols, even before its extension in 2010 and the Tribunal’s lack of authority in power to enforce the SADC Treaty.

Ms Malilwe added that having looked at the challenges that exist within the SADC legal framework, it shows that the SADC Treaty is a weak legal framework, which results in weak implementation. She said this situation means that legal practitioners have little chance of playing any meaningful role in the regional integration of SADC. Ms Malilwe also spoke of the role that the SADC LA can play in this regard, and pointed out that for any meaningful integration in the SADC region, there needs to be:

  • The amendment of the SADC Treaty, which must harmonise the laws into one and the harmonisations of those laws should be one of the objectives of the SADC region.
  • The harmonisation to create a treaty or community law that will bind the member states.
  • Formulated procedures and mechanisms to adopt harmonised community laws that are applicable to member states, such as the East African community’s agreement titled the ‘Organisation for the Harmonisation of Corporate Law in Africa’, which aims to unit business laws of state parties to encompass the free movement of the legal profession in the SADC region.
  • A way forward for the SADC region to formulate business law, in particular trade law, which needs to be harmonised to facilitate trade.
  • The formation of a SADC Parliamentary Forum, which can enact laws that can be directly applicable to member states.
  • An adequately capacitated SADC Tribunal to ensure effective application and implementations of the harmonised laws.
  • A way forward to ensure the free movement of lawyers in the SADC region to enhance and enforce uniformity in the community law.

Ms Malilwe said all of this can take place if the leadership in the region has the adequate political will to achieve harmonisation.

New SADC LA members:

SADCLA President and Executive Committee and Council are as follows –

  • Ms Vimbai Nyemba: President (Zimbabwe)
  • Mr Flavio Menete: Vice-President (Mozambique)
  • Ms Vincia Cloete: Treasurer (Nambia)
  • Ms Noxolo Maduba-Silevu: Committee Member (South Africa)
  • Mr Guilherme Fumwathu: Committee Member (Angola)

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

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