By Barbara Whittle

Opening the 15th conference of the SADC Lawyers Association (SADC LA) at Victoria Falls, Zimbabwe in August, the outgoing President of the SADC LA, Zambian lawyer Kondwa Sakala-Chibiya said the conference theme of ‘Strengthening the Rule of Law and Good Governance in the SADC Region: A Call for Transparent and Accountable Leadership’ was relevant at a time when many Southern African Development Community (SADC) countries were making efforts to create laws and institutions that promote transparency and accountability, while at the same time, making efforts to connect citizens with their governments. ‘There can be no transparent and accountable leadership without the people of our respective countries holding our leaders to account. It is incumbent on all of us to participate in the governance of our countries to ensure that we get the leaders we deserve,’ she said.

Ms Sakala-Chibiya stressed that although positive strides were being made at national level, lawyers in the region remained concerned about the lack of transparency and accountability and the failure by SADC governments, the SADC Summit, the SADC Council of Ministers and other SADC organs to engage and involve the citizens of the region in key decision-making processes. ‘The suspension of the SADC Tribunal and subsequent decision-making processes on the issue are a case in point. As we have said at every SADCLA conference since the suspension of the Tribunal in 2010, as the legal profession in the region we remain concerned that the Tribunal was suspended in the manner that it was, despite the clear negative implications of that decision on issues of access to justice, independence of the judiciary and respect for the rule of law.’ She added: ‘The SADC LA has, with great sadness and disappointment, learnt of the signing of a new protocol to the Tribunal which limits the jurisdiction of the Tribunal to settling disputes between state parties under the SADC Treaty. It is regrettable that this Protocol was signed without the involvement of the people of the region.’ (See page 5 of this issue.)

Ms Sakala-Chibiya added that the SADC LA lawyers were saddened by developments in Swaziland, where their colleague and human rights defender, Thulani Maseko and journalist Bheki Makhubu had been sentenced to two years’ imprisonment for alleged contempt of court in July, after spending four months in pre-trial detention (see 2014 (Sept) DR 15; 2014 (Aug) DR 16 and (May) DR 15). ‘There can be no transparent and accountable leadership where impunity reigns,’ she noted.

Calls for abolition of death penalty in Zimbabwe

Law Society of Zimbabwe (LSZ) President Lloyd Mhishi welcomed delegates to Zimbabwe and then went on to address his opening remarks to Zimbabwean Minister of Justice, Legal and Parliamentary Affairs, Emmerson Mnangagwa. He said: ‘I want to say to you Minister, the issue of protection of the rule of law and upholding of human rights, is a matter dear and close to the hearts of lawyers. … The absence of the rule of law makes lawyers and the courts useless. Our intentions have in the past been misconstrued because of this. The LSZ has in the past been labelled a political party because of this. Some of my predecessors had to sacrifice body and limb to preserve the LSZ’s integrity and independence. Allow me to dispel the misconception.’

Listing the names of ‘lawyers of our liberation’, Mr Mhishi noted: ‘Those lawyers fought tenaciously against injustice and the trampling of human rights. Just as those lawyers sought to remind the regime then to restore our people’s rights, we expect you not to frown when we, who came after you, remind you to stick to the good ideals that you brought through the barrel of the gun. After all what is wrong with what we say? We are indeed on the same side because we say, dear leaders, create laws for the country, but then go on to respect them!’

He stressed that the LSZ urged the Minister to ensure that the death penalty is struck from the statute books of Zimbabwe.

He went on to call for the Minister’s assistance for the following:

• Lawyers must not be arrested merely for doing their work. A recent judgment of the Zimbabwean Supreme Court explained why lawyers must fight tenaciously for the rights of their clients. They must not be arrested for doing so.
• Everyone must be equal before the law.
• Court orders must be obeyed.
• Judicial independence must be respect­ed. This includes attending to the welfare and remuneration of judges so that this does not interfere with this independence.
• Zimbabwe has a new Constitution that has an expanded Bill of Rights. There must be adherence to the Constitution and a speedy alignment of the laws to the new supreme law. ‘I need to confirm that you have opened your door wide for cooperation by Zimbabwean lawyers in this regard. We will, in the next few days, be seeking your audience to present to you the first model bill that our members have come up with in an effort to assist with the process,’ he noted.

Deviating from his written opening address, Mr Mnangagwa referred briefly to the SADC Tribunal and to the issue of the death penalty.

On the SADC Tribunal Protocol which had been signed days before, the Minister noted: ‘Even before the ink gets dry. I can see that you [lawyers] are on the confrontational path. Good leaders take the nation where the nation wants to go, but great leaders take the nation where it ought to go. In SADC we have great leaders.’

As regards the death penalty, he pointed out that at independence Zimbabwe had nine offences that attracted the death penalty. Now, under the new Constitution, there was only one. ‘I will continue to campaign for the abolition of the death penalty because I do not believe in it,’ he stated. Referring to the current inmates who had been sentenced to death, the Minister said he would not be signing the warrants for their execution.

In referring to the conference theme in his prepared address, the Minister noted that the SADC region had made commendable progress in prioritising good governance. Under this priority area, the region hoped to achieve –

• improved justice delivery and the rule of law;
• enhanced accountability in the management of public resources and service delivery;
• enhanced participation in democratic governance; and
• strengthened mechanisms for peace building and for the prevention, management and resolution of conflict.

The Minister said crucial strides towards this goal had been made recently in Zimbabwe with the adoption of a new Constitution which had ushered in a number of progressive provisions. The Constitution now goes beyond civil and political rights and provides for an expanded Bill of Rights incorporating socio-economic, cultural and environmental rights as well as the protection of vulnerable groups of society. ‘As lawyers, we have a sacred duty to participate actively towards the actualisation of the pledges of democracy that are enshrined in our Constitutions, but let me also hasten to add that in this endeavour, we are required to conduct our work with the dignity, discipline and decorum that is befitting of our profession.’

He added that the SADC LA could be instrumental in facilitating the participation of citizens in democratic processes and in the way public and local authorities are run to ensure accountability and more effective and efficient service delivery. He noted: ‘Some of our public institutions in the sub-region are performing poorly and the scourge of corruption is rife. This can be partly attributed to weak monitoring and evaluation systems, and points to the need for results-based management and accountable service delivery in the public sector management systems.’

The Minister highlighted the issue of the representation of women in key decision-making positions. ‘Women are still greatly under-represented as elected officials and in the vast majority of political institutions. Even though there has been some progress in the participation of women in national governance in the sub-region, it remains below that required by SADC. Women still suffer from legally or culturally embedded discrimination at the social, political and economic levels. Women’s involvement in politics is essential because the institutions that govern our lives should be representative of the population as a whole. Adequate representation of women is necessary to legitimise our political system and make it more likely that issues of particular importance to women will be addressed.’

Chissano: Constructive criticisms work better with constructive dialogue and guidelines

Former President of Mozambique and recipient of the 2007 Ibrahim Prize for Achievement in African Leadership, Joaquim Chissano, prefaced his keynote address to the 15th conference of the SADC LA by emphasising the point that Africa’s political landscape was changing for the better. ‘We as Africans should claim the credit and be proud of these momentous achievements. We have moved from one-party democracy to multi-party democracy; from life presidency to tenure presidency; from unconstitutional changes of government to democratic changes of government; and from mediocrity to meritocracy.’

He added that the economic landscape had also changed drastically. ‘Africa is considered to have some of the fastest growing economies in the world. With changing political and economic landscapes new legal requirements to promote democracy and good governance are being re-enforced and sustained.’

In his keynote address, President Chissano pointed out that Africa had been through a period of protracted intra-state conflicts during which it was recognised that the rule of law was an important tool for promoting peace, security and stability and for building a democratic society. The struggle against colonialism and white minority regimes was a struggle against the violation of human and peoples’ rights.

He noted: ‘One could, therefore, argue that the wars of liberation were just wars against colonialism and the denial of basic human rights including the right to freedom of association as well as freedom of speech. There is no doubt that under colonialism there was no recognition of the fact that human beings are inviolable. Equally, there was no recognition of the fact that every human being is entitled to respect for his or her life and integrity of his or her person. As lawyers you all know that no one may be arbitrarily deprived of this right. But, colonialism deprived most of the African people of most of their basic human rights.’ He added that the leadership in African countries after independence recognised the centrality of promoting human and peoples’ rights and respect for the rule of law.

President Chissano noted that the African continent had come a long way in embracing democracy and democratic values as a way of building good governance and ensuring respect for the rule of law. He said: ‘Multiparty democracy provided the opportunity for rotation and change in leadership. Through democratic values and principles it was possible to promote the notion that there was life after presidency and that life-presidency violated the basic rights of a people to choose their own leaders through elections. Since then elections have become common as Africa goes through a series of elections on the continent every year. We can say that democracy has taken root on the continent and good governance is evolving within the context of democratic values and principles.’

Having provided the background to Africa’s efforts in promoting the rule of law, democracy and good governance, and outlining a number of declarations adopted by African leaders to promote these, the former President went on to share his views on how best to strengthen the rule of law and good governance in the SADC region on the basis of transparent and accountable leadership. ‘Africa is not short of ideas, but there is a serious problem in implementing some of the decisions either because of a lack of funding or simply political will.’

At continental level, President Chissano said he was encouraged by the fact that the African Union Summit in Malabo, Equatorial Guinea in June this year, had adopted amendments to the protocol establishing the Pan African Parliament (PAP), gradually moving the PAP from advisory to legislative functions. ‘This strategic shift may allow for the drafting of model laws and the strengthening capacity of the PAP to address normative issues effectively. I am convinced that the PAP will require the support of the SADC LA to support the development of model laws and the harmonisation of laws within the SADC and in Africa,’ he said.

‘The only alternative to transparent and accountable leadership is transparent and accountable leadership. There is no other option,’ he stressed.

He noted that the objective of the African Charter on Democracy, Elections and Governance was clearly to provide latitude for the strengthening of the rule of law and good governance, and if these are well implemented, they would no doubt bring about the required transparent and accountable leadership. However, President Chissano stressed, institutions such as the SADC LA were needed to support the efforts aimed at enhancing transparency and accountability. ‘If there are no checks and balances, we are likely to divert from established norms provided in all the declarations we have so far adopted on governance and leadership and make the current leadership a mockery of the future. We have made some significant progress in promoting good governance and accountable as well as transparent leadership, but we need to do more. There is no doubt that some countries have moved faster than others essentially because they had in place the enabling political environment and well-articulated legal frameworks and established norms.’

President Chissano noted some aspects essential for the enhancement of transparent and accountable leadership:

• There was a necessity to uphold the commitments that are made. ‘It does not make sense to adopt declarations that we do not have the necessary will to implement. This is why I would propose the establishment of a follow-up, monitoring and implementation mechanism to ensure the enhancement of transparent and accountable leadership. It is not enough to adopt the declaration without such an enforcement mechanism in place to ensure its implementation. I challenge the SADC LA to establish the necessary measures to raise awareness about the need for greater transparency and accountability in leadership.’
• The first responsibility of a transparent and accountable leadership is to protect its citizens’ rights and to avoid a relapse into authoritarian rule. ‘We need, therefore, to redefine citizenship informed by commitment to a theory of citizenship that guarantees individual rights, and to restructure and accommodate fractured citizenship rights asserted by exclusion and marginalisation of minority groups and communities. We also need to inculcate a culture of tolerance and respect for divergent views.’
• The Constitution must be respected as a legal framework that serves as a guide to undertake a number of actions to ensure the rights of individuals as citizens. ‘The people are the barometer for measuring good governance and for awarding transparent and accountable leadership. Leadership is about being able to address the concerns of the people and to anticipate corrective measures in the event things go wrong. This is why transparent and accountable leaders must demonstrate visionary capacity to anticipate problems and solve them with the least impact on the people.’
• Peace and stability are the building blocks of sustainable development. ‘There cannot be peace without economic development and, in turn, peace without economic development is unsustainable. We need stable governments led by a transparent and accountable leadership, based on democratic political succession with fixed presidential term limits, within the framework of competitive party and electoral politics and the periodic holding of free fair and credible elections, managed by independent electoral bodies recognized under the Constitution.’

He challenged the SADC LA to contribute to the campaign to ensure the drafting of model laws and normative aspects for transparent and accountable leadership. ‘Constructive criticisms works better with constructive dialogue and guidelines,’ he concluded.

From human rights to law firm management

The official communiqué issued by the SADC LA after the conference outlined discussions and resolutions taken during the two-day conference:

Generally, conference delegates –

• acknowledged the progress made in the region in promoting accountable and transparent leadership, but highlighted gaps that still exist in electoral systems and processes, as well as in combating corruption and corrupt practices;
• recognised that constructive dialogue and engagements between lawyers, the judiciary, the legislature and governments at national and regional level is critical in creating good relations for the benefit of the citizens of the SADC region;
• recognised the role of the legal profession in promoting regional integration through citizen engagement and ensuring that the citizens of SADC – and indeed the rest of the African continent – know each other in order to promote inter-regional and inter-African trade, cooperation and relationships;
• emphasised the need by SADC governments to move away from authoritarian rule and to tolerate divergent views while consulting citizens on key regional integration issues;
• noted that the centering of regional conversations on cooperation and development as opposed to analysis of conflicts was an indication of a region that is more at peace with itself and a political landscape that is changing for the better; and
• noted further that Africa is not short of ideas but lacks the effective implementation of ideas; hence the need for the creation of regional strategies for implementation of laws and policies as well as the monitoring and evaluation of such implementation.

Following the three plenary and five parallel sessions that were held, the SADC LA summarised the outcomes of each session as follows:

The promotion of human rights – engage on the SADC Tribunal

On the promotion of human rights, and taking into account that the conference took place in Zimbabwe, delegates noted that the legal profession in Zimbabwe – and the SADC region – must work with the Minister of Justice of Zimbabwe and the Government of Zimbabwe in ensuring that the death penalty is totally removed from the statute books following progress that has been made in the country in limiting the application of the death penalty.

It was also noted that the 2013 Constitution of Zimbabwe should be used to better the rights of Zimbabwean citizens.

Generally in the region, the SADC LA and its constituent members must facilitate public participation in democratic processes and in local governance with a focus on effective service delivery at the local and municipal level. The inclusion of women in decision-making processes and key leadership positions is critical for the advancement and development of the SADC region.

The legal profession in the SADC region must continue to engage on the SADC Tribunal issue to ensure the creation of an institution that meets the expectations of SADC citizens.

Transparent and accountable leadership: Create a model law for monitoring

It was agreed that citizen engagement was necessary in order to hold leaders accountable and promote transparency in governance. Lawyers must participate in knowledge-sharing programmes with the rest of the citizenry on the laws that citizens can utilise for their protection and institutions that citizens can use to increase public participation in decision making.

Lawyers must –

• work with Pan-African institutions such as the PAP to create a model law on transparency and accountability for the African continent; and
• help in putting in place monitoring and evaluation mechanisms to ensure the implementation of transparency and accountability laws, programmes and commitments.

Media: A need to balance state regulation and self-regulation

In the session focusing on the role of the media in strengthening rule of law, good governance and accountability, lawyers highlighted the need for mechanisms to increase public access to information held by the state and state-owned enterprises.

It was noted that –

• lawyers must work closely with media practitioners to ensure that citizens enjoy the rights enshrined in national constitutions; and
• there is need to balance the issue of state regulation of and self-regulation by the media, at the same time ensuring that media practitioners carry out their work professionally and ethically.

As regards the new Constitution of Zimbabwe, it was commended for protecting journalists and media practitioners in the country, but Zimbabwean lawyers stressed the need for media laws to be aligned with the new Constitution, noting that the right to freedom of expression is not primarily for the benefit of the journalist but for the benefit of members of the public.

Fighting corruption and promoting accountability

It was noted that if all the money that is lost through corruption and illicit financial flows were channelled towards development, Africa would not need any foreign aid. As such it is necessary to –

• fully implement the SADC anti-corruption protocol and other international anti-corruption instruments, including the establishment of institutions to fight corruption; and
• establish fully functional, fully funded, independent and effective anti-corruption commissions at national level.

These must be complemented by strong and independent judiciaries, legal frameworks and other institutions, all of which must be coordinated to ensure effective implementation.

It was noted that research has shown that lawyers are involved in corruption, with 95 jurisdictions in the world citing corruption within the legal profession as an issue of concern. Lawyers are exposed to corruption when they act as intermediaries in international commercial and investment transactions. In that regard law societies must provide training, strategies and standards in anti-corruption, and law firms must have anti-corruption strategies and policies as well as focusing on due diligence when dealing with international clients.

Delegates also noted that, where corruption is prevalent within the judiciary, strategies are required to address this corruption.

As regards the independence of the judiciary in the SADC region, delegates noted that weak or corrupt judiciaries are a hindrance to social and economic development. Strengthening the judiciary is a pre-requisite to upholding the rule of law and maintaining the balance while promoting the separation of powers as enshrined in national constitutions.

Besides the importance of an independent judiciary, it was emphasised that the independence of the Judicial Service Commission is critical in maintaining that independence – and political will is important in maintaining the independence of both. In addition, the remuneration and conditions of service of judges must be such that they are not subject to manipulation or used to undermine the independence of the judiciary.

Law firm management: African law firms must prepare to be self-sufficient in the future

The session on law firm management covered presentations on the African legal market, the need to upskill African firms so as to create a critical mass of substantial African business law firms; the need to meet client demands as African economies grow and diversify; as well building deeper knowledge and alliances.

Delegates concluded that there was a need to leverage the relationships between African law firms and the big international law firms in order to grow the work of African lawyers and law firms.

Also, there was a need:

• to develop African capital markets and to develop a substantial mass of African business law firms. In order for this to happen, African law firms must evolve so that they can compete on the global platform. This evolution must be undertaken with the realisation that change is uncomfortable and they must, therefore, be prepared for such change.
• to put in place measures to ensure that regional trade in professional services is taken seriously and that lawyers play their role in promoting trade in the SADC region. Lawyers have a role, as part of professional services, in facilitating trade and investment, a role that lawyers in the East African Community have taken seriously. There must be partnerships between lawyers and governments, as opposed to them being adversaries, as this leads to governments not relying on local legal expertise but rather consulting foreign lawyers due to lack of trust;
• to address the weak skills base among local lawyers in relation to the changes that are taking place, for example in the areas of oil and gas. In this regard, law societies must address these skills gaps through continuing legal education for practitioners;
• for senior lawyers to manage the expectations of young lawyers; Bar associations and law societies should ensure that young lawyers stay in the profession and contribute effectively towards its development;
• to revise legal and policy regulating frameworks for the legal profession to allow for innovation and competition by balancing the regulatory frameworks with the realities of the modern world, where information has become readily available. Liberalisation of trade and professional services must be balanced with the growth of skills for African lawyers to allow for effective competition, while allowing lawyers to specialise in specific areas;
• to support and strengthen Bar associations and law societies at national and regional level, while at the same time increasing lawyers’ participation in pro bono work so as to fight the perception that lawyers are merely profit-oriented;
• to grow capacity in the area of law firm management as law firms need governance structures and strategies to invest in talent management, adopt value-based approaches to business and acknowledge the importance of business development; and
• for collaborative alliances by law firms as they provide both independence and presence in various jurisdictions.

Generally there was an acknowledgment that African lawyers must realise that there is no need to defer constantly to international law firms, as African law firms have and can have the required expertise. There was a need to develop the expertise in order to be self-sufficient in the future.

Women in the legal profession: A luta continua

It was noted that women found it increasingly difficult to reach the upper echelons of the profession due to the patriarchal nature of the profession on the one hand and their care roles on the other, which inhibit their professional development. There is, therefore, a need for such gender and care roles to be recognised and properly acknowledged by the organisations that female lawyers work in.

It has become increasingly difficult for young lawyers to get their first jobs after law schools, leading to the sexual harassment of young female lawyers. There was a need for senior female lawyers to protect young female lawyers and stand up against such abuse. Mentorship by senior lawyers was one way of protecting younger lawyers.

Female lawyers lacked networks to grow their businesses, as compared to their male colleagues. There was, therefore, a need for women to establish their own networks such as women lawyers’ associations at national and regional levels. Delegates acknowledged that the majority of male lawyer were concerned that female lawyers should succeed and as such, female lawyers must work with their male colleagues to grow both professionally and socially.

Female lawyers must participate in law society governance structures at both national and regional levels in order to develop the requisite skills and also so that their skills and expertise are recognised. However, leadership in the legal profession for women can be an isolating and lonely experience. It was, therefore necessary for female lawyers in leadership positions to foster the necessary support structures.

Human-rights lawyering must be taken seriously by female lawyers – and all lawyers generally – to dispel the notion that human rights work is not rewarding.

The judiciary must appreciate the international human rights frameworks and instruments for the promotion and protection of women’s rights and make a difference by giving progressive decisions on issue of women’s rights at various levels.

Law societies and Bar associations must find ways of rewarding law firms that develop and effectively implement gender policies.

Mining agreements: Tools for building trust between stakeholders

Owing to new natural resource discoveries on the continent (and in the region), lawyers in developing countries need to become better versed in complex contract negotiations and drafting skills to realise the full financial and social benefits to local contracting partners and communities.

Model mining agreements are important in the promotion of the economic development of any country and the success of projects.

Whereas there have been recent criticisms of model mining agreements due to the inequality of bargaining power and experience; corruption, lack of transparency as well as inequality of economic benefits, it would still be important for lawyers to familiarise themselves with them in line with regional and international best practices in the sector and as a means of articulating a role for regional economic communities such as SADC.

Lawyers needed to familiarise themselves with the stabilisation clauses regime to advise adequately on how to overcome risks to the projects as well as the potential imbalance of beneficiation between the state and the investor.

Lawyers must play a role in ensuring that communities affected by mining provide prior informed consent to mining activities and appreciate the nature of mining developments before the mining development commences, while at the same time ensuring that communities benefit from business relationships with the mining companies.

In negotiating contracts, lawyers must ensure that trust is developed between and among the various interested parties by clearly articulating the key roles and responsibilities of all the major actors, including the state, the private sector and communities.

The law firm panel:

A plenary session at the SADC LA conference looked at how law firms and lawyers in the SADC region can adequately meet the increasingly demanding needs of clients, both local and international, as African economies grow and diversify.

The session was sponsored by the International Bar Association (IBA) Law Firm Management Committee. Speakers included, IBA Human Rights Institute chairperson, Zimbabwean lawyer Sternford Moyo, who chaired the session; Webber Wentzel partner Owen Tobias, who dealt with different strategies adopted by South African law firms to service new clients in African jurisdictions; London-based law firm consultant Rob Millard analysed the African legal market; Pretoria chartered accountant and trainer Vincent Faris outlined how a successful law firm manages client needs and expectations; and Zambian lawyer Charles Mkokweza looked at meeting client demands as African economies grow and diversify. Also on the panel, but not pictured, were Tito Byenkya, CEO of the East African Law Society, who also looked at meeting increasing client needs amidst growth and diversification from an East African perspective, and German lawyer, Herman Knott – Co-chairperson of the IBA Law Firm Management Committee – focused on building deeper knowledge and alliances with specialised attorneys.

Mr Millard noted: ‘In order for Africa to progress from its political freedom to its economic freedom, a critical mass of substantial African business law firms is required, that can deliver teams of African lawyers who can competently advise large national and international clients on solving their most important, difficult legal challenges in Africa.’

Barbara Whittle, barbara@LSSA.org.za

This article was first published in De Rebus in 2014 (Oct) DR 14.