Compiled by Mapula Thebe

Using the law to strengthen good governance practices in the SADC region

This years’ annual Southern African Development Community Lawyers’ Association (SADC LA) conference was held in Dar es Salaam, Tanzania from 20 to 23 August. The theme for the 16th annual conference was: ‘Using the law to strengthen good governance practices and to facilitate social, economic and political transformation in the SADC region.’

The conference was attended by judges, law society and Bar leaders, practitioners, government officials, members of the academia, attorneys general and representatives from regional and national civil society organisations.

Delivering the opening address, President of the United Republic of Tanzania, Dr Jakaya Mrisho Kikwete, congratulated SADC LA for uniting law societies and Bar associations in the SADC region. He noted that the theme of the conference was befitting, timely and relevant. He said that social, economic and political transformation was important to all stakeholders in the region, as this will foster an environment and platform that will raise investor confidence. He added: ‘Raising investor confidence will ensure economic growth in the region and ensure that the region is the destination of choice for investors. This is also one of the agendas of the Tanzanian government.’

Delivering the opening address, President of the United Republic of Tanzania, Dr Jakaya Mrisho Kikwete, congratulated SADC LA for uniting law societies and Bar associations in the SADC region.

President Kikwete urged attendees at the conference to protect the rights of the marginalised, namely, women and children, and not to lose sight of the important role the legal fraternity plays in this regard. He asked lawyers attending the conference to bring themselves closer to the ordinary people of their respective countries to ensure that they position themselves to assist with access to justice, adding that ‘only then can the common man have access to justice’.

Using the law in the purpose of transformation

On the first day of the conference, a plenary session was held under the theme: ‘Using the law to strengthen good governance practices and to facilitate social, economic and political transformation in the SADC region. Chairman of the Commission for Human Rights and Good Governance of Tanzania, Bahame Tom Mukirya Nyanduga, presented the keynote address.

Chairman of the Commission for Human Rights and Good Governance of Tanzania, Bahame Tom Mukirya Nyanduga, speaking about how the law can be used as an additive for change.

Mr Nyanduga said the law can be used as an additive for change in the development and transformation of society in the SADC member state countries, adding that the rule of law, separation of powers and freedom are the bedrock for social transformation. He noted that rule of law can achieve an effective balance of power in all arms of the state. ‘The state must ensure that national reforms are put in place, fight corruption and allocate resources in the management of public entities, this will contribute to peace in a state,’ he said.

Mr Nyanduga called on all lawyers to work with the relevant stakeholders to improve the rule of law in society, adding that the concept of the rule of law has many elements and can be looked at from a political angle, which would entail equal and similar justice for all. ‘The rule of law is infused with human rights norms. … The rule of law are a set of rules that state that all entities are accountable to the law. These rules should assist states with their decision-making procedure and enhance transparency.’

Speaking about corruption, Mr Nyandunga said that corruption by public officials for personal gain existed in all branches of government. He added that governments needed to be transparent to ensure accountability because ‘rampant corruption wasted public resources and undermines the rule of law. Lawyers have to address the social needs of the people and citizenry and not be bystanders to ensure that public resources grow’.

Tokoloshi democracy

The second speaker of the plenary session; Director for Southern Africa Amnesty International, Deprose Muchena, spoke on social injustice. He said that income inequalities in the SADC region effect access to justice and that the law was a basis for economic transformation. ‘Most countries reflect a tokoloshi democracy. People talk about it, but no one sees it,’ he said.

Speaking on justice in the SADC region, Mr Muchena said: ‘There is an assault that is taking place across the region targeting freedom of expression. We have also seen police use excessive force that is taking away rights. There has been attack on powers of the state and human rights. All across Africa there are incidents of forced eviction. How have lawyers positioned themselves to defend the evicted?’

Mr Muchena said that the SADC Tribunal was meant to be an institution for the people of the region but presidents have privatised it. ‘We need to question why an important institution such as the SADC Tribunal was ended,’ he said.

Funding law societies and Bar associations

Speakers at the Funding and Sustainability for Law Societies and Bar Associations session, from left to right: SADC LA Treasurer and immediate past Co-chairperson of the Law Society of South Africa, Maxwell Boqwana; immediate past President of the East Africa Law Society, James Aggrey Mwamu; and Managing Director at REX Consulting Limited, Dr Eve Hawa Sinare.

One of the breakaway secessions of the first day of the conference discussed funding law societies and Bar associations. Immediate past President of the East Africa Law Society (EALS), James Aggrey Mwamu spoke on the member based funding model.

Mr Mwamu said that the EALS does not rely on donor funding. He added: ‘The East Africa Law Society is the apex regional Bar association of East Africa. It was jointly founded in 1995 by a group of lawyers with the support of the leadership of the national Bar association of: Zanzibar Law Society, Uganda Law Society, Tanganyika Law Society, Law Society of Kenya, Kigali Bar Association and Burundi Bar Association. It has over 10 000 individual members and six institutional members. It is the largest Professional organisation in East Africa, with a specific focus on –

• the professional development of its members;
• promotion of constitutionalism;
• promotion of democracy and good governance;
• advancement of rule of law; and
• promotion and protection of human rights of all people in East Africa and beyond.’

According to Mr Mwamu the funding for EALS is based on individual subscriptions, institutional subscriptions, donor funding, as well as research and publications. He said that members’ subscriptions have made the society independent from governments’ control and influence. Adding that donor funds are just a supplement rather than the primary source of funds and that this also helps reduce donor dependence.

The second speaker of the session on funding was Councillor of SADC LA and the Law Society of Botswana, Joseph Balosang Akoonyatse. Mr Akoonyatse began his presentation by speaking about the rule of law. He said: ‘The rule of law is recognised in all civilized world as a key principle of good and democratic governance. … General consensus exists that the concept of the rule of law means no less than that – the law is supreme over all persons – no matter how wealthy and powerful they may be. The rule of law ensures that everyone “plays by the same rules” and that those that are otherwise mighty and powerful do not use arbitrary power to the detriment of the weak and vulnerable. Where there is no rule of law, there is chaos and anarchy – there is a survival of the fittest where you either eat or you are eaten. Who ensures the effectiveness of the rule of law? It is the legal profession.’

Mr Akoonyatse said that, while created by an Act, the Botswana Law Society does not receive any financial assistance from the government. ‘Since inception, the society has self-financed its activities through membership fees, but this has not been enough, with the result that the society’s growth and capacity to carry out its statutory mandate has been limited by financial constraints. The financial challenge is further compounded by the fact that members of the legal profession employed by the government and statutory corporations are exempt from the payment of fees for practicing certificates and subscription.’

The third speaker of the funding session was advocate and Corporate Legal Consultant at Rex Consulting Limited, Dr Eve Hawa Sinare. She said that law societies are membership driven entities, they represent and support members to deliver high standards of professional competence through a wide range of services. ‘Law societies supervise and regulate the conduct of lawyers; represent the interest for lawyers – influence government, parliament and key stakeholders. Law societies work to improve the administration of justice, promote respect for the rule of law. They safeguard and maintain the core values of the legal profession’s independence,’ she said.

One of the delegates attending the session reminded those present that law societies need to ensure that members receive proportionate benefits for the subscriptions they pay.

Perspectives on the role of the profession in promoting the rule of law and democracy

Law Society of South Africa Co-chairperson, Busani Mabunda, said that the conference was the opportune time to take views of those at the heart of the profession, within the SADC region, to help South African practitioners formulate the Legal Practice Act.

On the second day of the conference, a plenary session, sponsored by the Law Society of South Africa (LSSA), was held under the theme: ‘National, regional and international perspectives on the role of the legal profession in promoting the rule of law and sustaining constitutional democracies’. LSSA Co-chairperson, Busani Mabunda, said the reason the LSSA sponsored the session was because South Africa is undergoing transformation of the legal profession. ‘This is the best time to approach others, those at the heart of the profession, within the region to share their insights. … We thought it was important to seize the moment and take the views of our brothers within SADC to help us formulate the Legal Practice Act,’ he said.

Speaking on engaging with the state on legal profession legislation and issues of public and professional interest, perspectives from Kenya, Chief Executive Officer of the Pan African Lawyers Union, Don Deya, said: ‘“The traditional role of a lawyers” association, at whatever level, (at least have one or a combination of):

Chief Executive Officer of the Pan African Lawyers Union, Don Deya, spoke on engaging with the state on legal profession legislation and issues of public and professional interest, perspectives from Kenya.

• Regulation: Education, admission, setting and enforcing practice standards and rules, discipline, etcetera.
• Representation (of the profession): “Trade union” function; representing the profession to the government, the public and the global legal community, etcetera.
• Public Interest: Administration of justice, the just rule of law, constitutionalism, democracy and good governance, which includes the protection and promotion of human rights.’

Mr Deya said that relations between lawyers’ associations and governments are multi-faceted, dynamic and constantly evolving. ‘The relationship may sometimes be conflictual, that is only natural. Ideally the relationship should have a healthy mix of co-operative and adversarial engagements,’ he said.

Presenting her speech on ethics, from a Namibian perspective, Councillor of the Law Society of Namibia and SADC LA, Carol Williams, said that lawyers are referred to as sharks, however, this is only applicable to a few. Ms Williams added that there are many lawyers who are champions of human rights and who believe in the rule of law that is based on fairness and equality. She cautioned attendees that if lawyers do not resolve the public’s problems using the rule of law, this will raise public dissatisfaction.

‘The law and morality are linked; the law is based on moral principles of society. Lawyers should respect the moral ideas of the people. Law societies should not only be regulators but should also be educators and implement ethics. A lawyer that conducts his or her work ethically, will be of much value to society, this is what society expects of him or her. Lawyers are the first officers of the court. We all know what is wrong and right. Lawyers should not be seen to be misleading the court,’ Ms Williams said.

Judge of the Supreme Court of Uganda, Lady Justice Prof Dr Lillian Tibatemwa-Ekirikubinza, delivered a speech, from the perspective of Uganda, on the role of professional and vocational education in improving the quality of lawyers and enhancing the quality of service to the public. She said that for vocational law schools to be described as fit for purpose, they need to improve the quality of service. ‘The public calls for quality assurance mechanisms in training, which should result into the products of professional and vocational law schools being described as fit for purpose. When a buyer makes known to the seller the particular purpose for which the goods are bought, there is an implied condition that the goods are reasonably fit for that purpose – the same should apply to graduates at our law schools,’ she said.

Director General of the German Bar Association, Cord Brugmann, spoke on balancing the regulatory and representative roles of the law societies or Bar associations.

Director General of the German Bar Association, Cord Brugmann, spoke on balancing the regulatory and representative roles of the law societies or Bar associations. He said that the written law is useless if there are no independent lawyers that are committed to serving their clients. ‘Independence of lawyers should happen on an individual level. One of the aims of law societies and Bar associations, as self-regulators, should be steered towards public interest. In my view, representatives of the profession and regulators should not be the same as this will result in conflict of interest. … Self-regulation is a clear indicator of democracy and adherence to the rule of law. Regulators have to remember that they do not have to be liked by their members and should stay within the scope of their duties,’ he said.

Increasing the potential of local law firms to advise clients on complex work in Africa

A session sponsored by the International Bar Association (IBA) Law Firm Management Committee, which was initially opened only for SADC LA individual members but later opened to all attendees at the conference, discussed law firm management in Africa. Partner and Head of the Strategy Practice at Møller PSF Group, Rob Millard, was first to address attendees during this session. At the onset, Mr Millard told delegates to bear in mind that a small law firm is not a little big firm.

Partner and Head of the Strategy Practice at Møller PSF Group, Rob Millard, said the law and law firms will be transformed by technological advances, but no more than other professions, and not more than law firms’ clients will be.

Speaking about the law firm of the future, Mr Millard said the law and law firms will be transformed by technological advances, but no more than other professions, and not more than law firms’ clients will be. He said that demographics will also play a big role in transforming the way law firms conduct business as the population gets more youthful. ‘Lawyers should profile the market they work in demographically versus others globally and figure out how this translates into growth potentially. This will also help the law firm determine the different needs of different demographic profiles and what this means for the goods and services the law firm provides,’ he said.

According to Mr Millard the ‘Big four’ global advisory firms dwarf even the largest global law firms. He said that the world’s largest law firms are quite small compared to the largest accounting firms. He asked: ‘Are we going to see the global legal profession consolidate into about 20 “mega-firms?” What does that mean for mid-tier firms? Which firms will be the market leaders of the future and what will be the source of their competitive advantage?’

Mr Millard said that the key to a law firm growing its market share is specialisation. ‘A firm should move from “we do everything” to “we are the best at …”. The key questions law firms should ask themselves are: What do we “want to be famous for”? How do we transition from a general to a specialist focus? How do we improve our skills in our specialist areas? How do we gain client trust that we can do this work well? What role should law societies/regulators play in this?’ asked Mr Millard.

Partner at Luther Rechtsanwaltsgesellschaft and Co-chairperson of the Law Firm Management Committee of the IBA, Hermann J Knott, spoke about success factors of law firms in Tanzania, which practitioners can apply in their different jurisdiction.

The second speaker of the session was partner at Luther Rechtsanwaltsgesellschaft and Co-chairperson of the Law Firm Management Committee of the IBA, Hermann J Knott. He spoke about success factors of law firms in Tanzania, which practitioners can apply in their different jurisdiction. He said that the size of law firms was not a goal by itself, but was necessary in order to handle several significant client matters at the same time; and build specialty teams/practice groups according to the relevant needs, for example, corporate, real estate, employment, administrative, tax, banking and litigation.

Mr Knott said that international clients expect law firms to specialise, adding that international clients also want to see the experience a law firm has on a particular area of specialisation from previous cases. He noted that with efficient use of technology successfully, law firms will be able to render better service to their clients and attract international clients.

Another area that law firms need to pay attention to, but are currently not, is project management skills according to Mr Knott. ‘Foreign investment projects are usually complex. Therefore the projects need to be properly planned and executed. Key action steps are: Preparation of step plan and time schedule accepted by all team members, team building, ensuring availability, role of project coordinator, one principal client contact, assignment of responsibilities. The competition among firms and similarity of substantive skills mean that it is not necessarily the same firm which will always be hired by the client for similar projects. Therefore opportunities have to be identified early on and the client relationship has to be maintained on a regularly basis,’ he said.

Resolutions from the conference

President of SADC LA, Gilberto Caldeira Correia, speaking at the 16th annual conference.

The President of SADC LA, Gilberto Caldeira Correia issued a list of resolutions from the 16th annual conference: Below are the resolutions from the three plenary and four parallel sessions that were held during the conference.

On using the law to promote good governance practices and to facilitate social, economic and political transformation in the SADC region, the following issues emerged:

• The rule of law, separation of powers and the protection of the fundamental rights and freedoms of citizens are the bedrock of social, economic and political transformation in the SADC region.
• It is important for the SADC governments to fight corruption and allocate public resources in a transparent and equitable manner and create legal systems that address the challenges of discrimination, poverty and inequality.
• SADC governments must create justice delivery systems that allow access to justice by citizens and are in line with regional and international principles and best practices.
• SADC LA should work and collaborate with other like-minded organisations both regionally and internationally to promote good governance so as to facilitate the social, economic and political transformation of the SADC region and ensure the utilisation of public interest litigation including on the SADC Tribunal issue.
• SADC governments must borrow a leaf from other jurisdictions, including the Indian jurisdiction with regards to the promotion of social justice principles, including striking a balance between citizens’ rights and their duties.
• The legal profession through SADC LA must take a leading role in ridding the region of repressive colonial legislation and in promoting fundamental rights and liberties.
• The challenge of rule by law as opposed to rule of law must be addressed and there should be efforts to ensure that laws are passed by parliaments and not through parliaments.
• SADC as an institution belongs to citizens and not to governments and that SADC leaders must therefore put the interests of the citizens first.
• Lawyers must play an important role in the creation of economic policies and in the process ensure that SADC states create laws that address challenges relating to illicit financial flows and human rights abuses in the natural resources sector.
• Lawyers have a role to play in regional integration and the achievement of the regional industrialisation strategy especially in the area of harmonisation of legal and fiscal regimes while promoting cross border legal practice.
• SADC regional leaders must accept the concept of peaceful transfer of power with a realisation that there is life after the presidency.

On funding and sustainability for law societies, the participants agreed that:

• Lawyers must take responsibility for the funding of their associations to ensure that as a profession, they have autonomy and are efficient and effective in delivering their mandate. To this end, donor funding must be supplementary and not be the main source of funding for law societies and Bar associations.
• The SADC legal profession must consider the East African Law Society membership funding model in which all lawyers who are members of the local law societies automatically become members of and are compelled to pay subscriptions to the East Africa Law Society.
• Law societies must be innovative and take up different fundraising initiatives, including, undertaking research, providing professional training, e-learning and crowd funding.
• Law societies must ensure that members get value for their money by providing tangible benefits for members in the areas of training, protection, representation and regulation. This includes identifying special interest areas that appeal to different categories of members such as young lawyers, senior lawyers, women lawyers and ensuring programming around those issues.

On international justice in Africa the following were identified as key issues:

• SADC LA and its constituent members must advocate for the domestication of the Rome Statute and for the strengthening of national judicial mechanisms to adequately handle international crimes.
• National jurisdictions should be empowered to prosecute international crimes through domestication of the Rome Statute in the spirit of complementarity.
• Fighting impunity requires political participation and commitment – all legal professionals must therefore commit themselves to fight impunity by engaging with the African mechanisms such as the African Court on Human and Peoples Rights and how to make them effective in addressing all issues of impunity.
• All legal professionals must work together to raise awareness with and for the people on justice in Africa.
• To curtail prolonged stays in office by African leaders and to avoid disintegration of nation states, stakeholders on the African continent such as the SADC LA, its constituent members and leading civil society organisations must consider amicable ways of engaging with heads of states with a view to encouraging them to adhere to the tenets of good governance and the rule of law and to leave office after their tenure.
• The SADC LA and its constituent members should encourage continued cooperative engagement between the African Union and the International Criminal Court in the mutually beneficial fight against impunity on the African continent in accordance with art 4(h) of the Constitutive Act of the African Union.
• SADC LA, its constituent members and civil society groups must compliment governments’ efforts to meet their three obligations to promote, protect and fulfil the human rights of all particularly for vulnerable groups such as women and children.

On national, regional and international perspectives on the role of the legal profession in promoting the rule of law and sustaining constitutional democracies, the participants agreed that:

• There is need for lawyers to identify and understand the extended nature of government institutions that impact on law reform and the role of lawyers therein and not confine engagements to the executive arm of government.
• Law associations/societies and Bar associations must be clear about the reason for their existence and their role (regulation, representation) and develop strategic plans to help in achieving their goals.
• There is need to strategically deploy members in institutions such as national and regional/international boards and commissions that have a role in policy reform and implementation and ensure that the members that are so deployed remain accountable to the profession.
• Lawyers must focus on their role as service providers and in improving access to justice, defending the vulnerable in society and promoting the rule of law. As such training of lawyers through law schools must ensure that lawyers are equipped with relevant skills including those in public interest litigation and understanding of gender, women’s rights and human rights.
• Law students must be placed with training partners and in internships so that they acquire practical skills early on in their training.
• Law societies must carry out constant surveys and research on member needs and expectations so as to maintain the relevance of the law society to its members.

On strengthening the legal profession in the region to ensure better judges, participants resolved that:

• Women must be encouraged to join the legal profession, to take up leading roles including high judicial and other public offices in order to be role models and to mentor young female lawyers.
• SADC LA and its constituent members must encourage the judiciary to address gender considerations in judicial appointments and in the adjudication of cases.
• SADC LA and its constituent members must advocate for better gender and diversity policies for law schools, judiciaries and law societies, advocate and lobby for the inclusion of a significant number of women on the judicial appointment committees and for more women to be appointed as senior lawyers.
• SADC LA and its constituent members should play a more active role in the appointment of judges, advocate for and encourage governments to initiatite legislative changes so as to provide for a more transparent and participatory process of appointing judges, on merit and by an independent and representative body.
• SADC LA and its constituent members must contribute to the standards, policies and practices for the appointment of judicial officers through conducting research and production of policy papers on best practices in the region and at the international level.
• SADC LA and its constituent members must insist on high professional and ethical standards among their members so as to grow a competent pool of candidates that are eligible for appointment to the judiciary through an independent, impartial and transparent process.
• SADC LA and its constituent members should provide more support to women who have the potential to be appointed to the judiciary and must be more proactive and train and strengthen members in order to prepare them for appointments to the Bench.

On increasing the potential of local law firms to advise clients on complex work in Africa, it was observed and agreed that:

• Lawyers must realise that technology is changing the world and impacts on both lawyers and their clients’ businesses and must therefore embrace technology and use it efficiently.
• African lawyers must identify economic and demographic trends that impact on their work including the growing middle class in Africa that acts as a pool for potential clients and a youthful population that translates into a potential workforce.
• The size of a law firm matters in that a bigger law firm entails the capacity to handle several significant client matters at the same time and do so efficiently and effectively.
• Specialisation is important because it improves efficiency and quality and in the process also decreases the risk of malpractice. There must be a time when a law firm moves from doing everything to being best at something.
• Knowing different languages has become an important skill and, therefore, the acquisition of different language skills must be pursued in the same way as the attainment of technical legal expertise.
• Lawyers must have an understanding of different cultures, have an international character and cooperate with international firms through programmes such as seconding young lawyers for attachments and internships.
• Lawyers must acquire project management and business development skills as foreign investment projects are usually complex and require good client relationships; and each law firm must build a reputation, a law firm culture and law firm values in order to succeed.

The above resolutions and key issues discussed at the annual conference will direct SADC LA in its programming in the coming year. This will help in ensuring that member expectations are met, that the key challenges that SADC citizens are grappling with are addressed and that the SADC region is served by an efficient, effective and independent legal profession. The next SADC LA annual conference will be held in Cape Town, South Africa from 7 – 20 August 2016.

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

This article was first published in De Rebus in 2015 (Oct) DR 6.