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271 views30 pagesTwaib 06 - Cap 6 - The Organisation of The Legal Profession
GLD is the single largest provider of legal services to government and has legal teams providing advisory services to nearly all the main Whitehall departments, including: Cabinet Office. Department for Business, Energy and Industrial Strategy. Department for Digital, Culture, Media and Sport.
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248 Chapter Sic
1. Tewill farther remove law teaching from law practice and national realities-especially
because law reporting is virtually non-existene in Cameroon,
2. The tendency to exclude teachers in law reform proposals will have an unfavourable
effect of hampering a proper, harmonious, rational and progressive development of
the law in the country.
Anyangwe’s contention above applies fittingly to the Tanzanian situation.
University lecturers have been largely marginalised in the post-graduation
employment of their students, It is suggested that they should be closely
involved, They are probably the best repository of the knowledge of the
strengths and weaknesses of law students, and could play a useful role in their
placings after graduation. :
8 Concluding Remarks
‘This chapter has discussed the structure of the legal profession in Tanzania,
the way lawyer's work is oxganised, the profession’s organisation, and
sociographic composition. It has been shown that advocates normally work
individually, not in firms, they are usually general practitioners and not subject
specialists. The structure is one of the causes for low standards of services and
undermines the profession’s ability to offer improved services to those who
need their services. The profession must work towards changing this situation,
for the better of all concerned.
‘The above is the actual position within the professional structure. In the
next chapter, we shall look at how legal professionals who operate within that
structure are supposed to conduct themselves generally and in theit relations
with others, namely the question of professional ethics and discipline. CHAPTER SIX
The Organisation of the Legal Profession
and Its Services
==
“Boery Advocate owes a duty at all times to maintain the
honour and dignity of his profession and to deal
S. honourably, frankly and fairly with all his colleagues.”
~ Tanganyika Law Society 3%?
1. Introduction
One of the typical features of professions is the existence of somé form of
organisational and formal structure. This is done through a professional
association which enables them to exercise control over the market and the
behaviour of its members. The present chapter discusses the way the VanzalfiiagS
legal profession is organised, and the manner in which the production” of its”
services ig set up. The chapter therefore examines the organisation and structure
\ of the private Bar, how icgal practitioners carry out their work, and the
composition of the legal profession. The main argument here is that if the
profession is to improve the standard of its services and generally meet the
growing demands for those services, both qualitatively and quantitatively, it must
change substantially towards greater specialisation and larger units of
production.
PARTI: THE ORGANISATION OF THE BAR
2. The Tanganyika Law Society
The Tanganyika Law Society is the main organisation of lawyers in
Tanzania Mainland. Its legal existence is established by section 3 of the
Tanganyika Law Society Ordinance. It is a body corporate, with perpetual
%2 Rule 37 (4) of the Rules of Professional Conduct and Exiquerte of che Tanganyika Law
Richard Abel argues that there are three important elements professions seek to attain:
income, power, and status. Since the attainment of one may not be enough, professionals
pursue all three of them simultaneously, which necessitates an organised control over the
market and professional discipline. Abel develops this thesis by combining three main
theories of the professions as propounded by Max Weber, Durkheim, and Kail Marx. See
Abel R. (1988), op. at, at pp. 3-31 and 133. ' 26 Chapter Six
succession and a common seal. It has powers to.sue and be sued in its corporate
name. Its major objectives are:
1, To maintain and improve the standards of conduct and learning of the legal
profession in Tanganyika;
2. To facilitate the acquisition of legal knowledge by members of the legal
profession and others,
3. To assist the Government and the courts in all matters affecting legislation
and administration and practice of the law in Tanganyika;
4 To present, protect and assist members of the legal profession in
‘Tanganyika as regards conditions of practice and otherwise;
5. To protect and assist the public in all mateers touching, ancillary or incidental
to the law.
The emphasis has thus been placed on improvement of professional
conduet, education (for the profession itself and the public), and assistance to
the Government and the public on matters of law. Like other professional
organisations the Tanganyika Law Society also aims at securing the material
benefits and social status of professionalism, acquiting the privilege of self-
regulation, and serving as the lawyers’ watchdog of professional interests.
Zanzibar does not as yet have any lawyers organisation of its own,
=
2 24. Discharging the Functions
‘The Law Society's discharge of the above functions has been varied. As @
body, it has been relatively active in its defence of the rights and interests of
advocates, It has‘been exercising strong control over supply of services. Using
this power, the Society has been able to define and defend the jurisdictional
boundaries of its members’ monopoly. Some of the methods employed have
been limitations on fees and costs, self promotion, the suppression of intra-
professional and para-professional competition, etc.
However, the Law Society has generally been a somewhat passive force in
“the overall political platform in the country. While tribute must be granted to
some of the other groupings, of the profession (such as the lecturers of the
Faculty of Law), and to some individual advocates within its membership, very
. rarely has the Society come out cither in support of or in opposition to a
particular legislation. And even when it has, it was in matters that either directly
or indirectly touched upon its members’ own interests as legal practitioners.
This conduct has sometimes prompted accusations of hypocrisy against the
profession because of the selective character of the protests. Whether the
accusations were justified or not, the Society's selective actions were at least
partly to blame for the situation. One example will suffice to illustrate the point:
In the aftermath. of the Government’s antieconomic sabotage campaign in
94 Section 3 of the Tanganyika Law Society Ordinance, Cap 344.
9% See Johnstone, Q., and Hopson, D. (1967), op. at, at p. 31- The Organisation of the Profession and Its Services 2
1983, the Law Society cried out against the enactment of the Economic
Sabotage (Special Provisions) Act, 1983. ‘The Act had prohibited advocates from
representing people accused of economic crimes. It also ruled out the right to
bail for the accused. Moreover, it established a special tribunal to deal with cases,
falling under its provisions, and ousted the jurisdiction of ordinary courts to hear
such cases, Because of its previous inactivity, the profession’s protestations were
considered by many as being motivated by self interest rather than concern for
the rights of those who had fallen victims of the draconian law.
Of late, however, there have been signs of more activity within the Society.
Partly because of the enactment of the Bill of Rights, the Society (mostly
through its individual members) has been very active in human rights litigation.
Also, in November 1994, the Society issued an important statement condemning
the Eleventh Amendment to the Constitution and advising that the amendments
were unconstitutional% The Society was intending to institute a suit in the High
Coutt for an order that would nullify the amendments. That would be a major
break with the largely silent past, and certainly a step in the right direction. The
Society should take a good lesson from its neighbour, the Law Society of Kenya,
which has always been in the forefront of the struggle for human rights and
respect for the Rule of Law in Kenya. Gitobu Imanyara, for instance, documents
instances where Kenyan lawyers have been prepared to take “the dangerous, . ..
more dating and more effective [way)” for the sake of human rights and the
Rule of Law with substantial success.2”
2.2, Membership of the Law Society
Practising advocates are the main members of the Tanganyika Law
Society.* But the Society is also open for membership to virtually all Jawyers in
Tanzania Mainland?” It can also admit honorary members. All practising
6 See “Statement of the Tanganyika Law Society”, The Laayer, Tanzania, Special Edition, 1995,
arp. 15. The Law Society particulatly took issue with two amendments in relation to human
rights: A provision (amending Article 30 of the 1977 Union Constitution) which removed
the constitutional power of the Judiciary to automatically invalidate a law or action for being
contrary to the Constitution and the Bill of Rights, and instead to merely set specified time
and conditions for the Executive or organ concerned to effect changes to the law or action;
and a provision which required all political activity in the country to be party-based, such
that no independent candidate could stand for election to any political office (amendment
clarifying Article 21 Constitution). The other objectionable amendment was one that
stipulated that the person who holds office as the Vice-President of the Union Government
should oot be at the same time the President of Zanzibar, which has always been the case
since the union in 1964.
97 Imanyara, G. (1993), op. at, at pp. 5 and 6, Imanyara says that in 1980, about ten lawyers,
were detained and neatly five publications banned or otherwise suppressed because of their
bold activities and frank expression of opinion relating to human and legal rights.
98 Section 7 of the Tanganyika Law Society Ordinance.
9 Section 8 of the Tanganyika Law Society Ordinance.
> Section 9 of the Tanganyika Law Society Ordinance. 2 Chapter Svc
advocates are compulsory members of the Society.#! An advocate can only
cease to be a member upon his own decision not to take up a practising
cettificate or to apply for his name to be removed from the Roll? So long as he
continues to practise, he has no “election, admission, or appointment” but to be
a member of the Society."
This obligation is however reciprocated by a provision which makes it
compulsory upon the Society to accept as a member any person who holds a
valid practising certificare. The Society cannot expel him from membership so
long as he is entitled to practise°# But when an order is made following
disciplinary measures against him to have his name removed from the Roll, he
automatically ceases to be a member of the Society.5 Similarly, when he is
suspended from practice, his membership is also suspended for the same
period. He is thus not entitled to any of the rights’ and privileges of
membership>#’ The Society may expel from membership any member, except
an honorary member, upon grounds and manner to be prescribed, after giving
him an opportunity to defend himself against allegations levelled against him.>#8
Consequently, an advocate’s membership of the Society is inextricably bound up
with his right to practise.
Pursuant to the provisions of section 8, the Society has a number of
members in the public sector, especially those working with the Attorney
General’s Chambers, the Tanzania Legal Corporation, and other legally qualified
petsons who need not have been enrolled as advocates. Hence, the word “Bar”
for the purposes of the Society, includes the public Bar. Every member who is
not a honorary member is obliged to pay an annual subscription fee,*?
determined from time to time by the Council of the Society.95° Members are
categorised into four groups. Under the latest rates (to take effect on Ist January
1997), practising advocates with less than one year in practice will pay Shs.
15,000/-. Once they enter their second year of practice, up to 10 years, they will
‘1 Section 7 (1) of the Tanganyika Law Society Ordinance.
2° Section 13 (1) of the Advocates Ordinance.
™ Section 7 (1) of the Tanganyika Law Society Ordinance.
4 Proviso to Section 13 of the Tanganyika Law Society Ordinance.
5. Section 7 (4) of the Tanganyika Law Society Ordinance.
6 Section 7 (3) of the Tanganyika Law Society Ordinance.
27 Section 7 (4) of the Tanganyika Law Society Ordinance.
#8 Section 13 of the Tanganyika Law Society Ordinance.
99 Section 10 of the Tanganyika Law Society Ordinance. Other starutory sources of Funds for
the Law Society are provided for under section 68A (I) of the Advocates Ordinance, by
which the balance of all fees paid to the Registrar under certain provisions of the Advocates
Otdiaanice, namely, section 8 (2) (in respect of applications for admission as an advocate)
section 35 (1) (b) (fees payable upon applications for annual practising certificate); and
section 39 (2) (payable by foreign practitioners applying to be admitted for the purposes of
particular cases), shall be paid by the Registrar periodically to the Law Society which may
apply it for any purpases for which its funds may be applied. The fees are provided for by
the Advocates (Accounts) and Practising Certificate) Regulations, 1955.
*88 Section 31 (1) (a) of Tanganyika Law Society Ordinance. The Organisation of the Profession and ls Services 2
have to pay TShs. 30,000/- per year. Those with more than 10 years experience
pay TShs. 100,000/-25 Advocates who do not practise or those who only
represent legal aid clients, such as those who exclusively take cases under the
auspices of the Legal Aid Committee of the University of Dar es Salaam (who
are considered non-practising), pay TShs. 5,000/- per year. Upon producing a
lerter from the Chairman of the Legal Aid Committee, lecturers in the Faculty of
Law are exempted from fees reserved for their practising colleagues. They
therefore pay the non-practising members fee 95?
Every member is required to attend the Society’s Genezal Meetings, which
must take place twice every year. 95 However, because the meetings have always
been held either at Dar es Salaam or Arusha, members from other parts of the
country have felt that the Society is less concerned about them. It is quite
inconvenient for them. But the preference for Arusha and Dar es Salaam is
apparently dictated by wo important factors: The fact that the majority of
members of the Society are located in these towns or close to them; and the
availability of better conference facilities. The other parts of the country are
relatively less endowed. In the 1995 General Meeting held at Arusha, there was
no delegate from Mwanza or the entire Lake Zone. It was felt that they had
boycotted the meeting because theit application to host one of the meetings had
been turned down. For this reason, the Arusha meeting resolved to hold the
next Annual General Meeting scheduled for January, 1996, at Mwanza 25*
2.3. Leadership of the Bar
‘The Attorney General is the head of the Tanzanian Bat. His role, however,
is not executive, Apparently, he exercises no powers whatsoever as such head.
But the title gives him the privilege of taking precedence as the senior-most
member of the Bar.5 He also sits as a member of the Advocates Committee
and the Council of Legal Education. %% The topmost executive, elected officer
and chief spokesman of the Law Society is the President, who is assisted by a
Vice-President 957
The day-to-day activities of the Society are catried out by the Council,
established under section 15 of the Tanganyika Law Society Ordinance. ‘The
51 Minutes of the Annual General Meeting of the Tanganyika Law Society, 10th February,
1996, Anusha, minute 4/96 (i).
982 See File No. ADV/565, High Court of Tanzania, Dar es Salaam, C's minute dated 27
February, 1990.
58) The General Meeting must be conducted within six wecks afier the 30th day of June and the
3tst day of January of every year: Section 21 of the Tanganyika Law Society Ordinance.
% Proceedings of the Annual General Meeting of the Law Society, Arusha, 28th January, 1995,
However, the Society’s President told the Bi-Annual General Meeting held at Moshi in
August, 1996, that in terms of members’ attendance, the Mwanza meeting was “a disaster”.
5 Section 9 of the Advocates Ordinance.
9% Section 4 (1) (b) and SA (1) (b) Advocates Ordinance. On the roles of the two bodies, see
Chapters Five and Six, -ypra
+57 Section 15, Tanganyika Law Society Ordinance, Cap 344. ms Chapter Sixx
Council consists of the President, the Vice-President, Treasurer, and seven other
members. All office holders must be members of the Society. Elections are held
once every year? and incumbents are eligible for re-election. The Council is
assisted in its duties by several committees charged with various tasks. These are:
“The Legal Assistance Committee, the Standing Law Committee, and the Human
Rights Committee. Members are appointed by the Society itself?” Two others,
namely the Advocates Committee and the Remuneration Committee, are
statutory bodies cstablished under the Advocates Ordinance” The
composition of the Advocates Commitiee is largely exoffias, except for one
advocate member elected by the Council of the Law Society.%! Office holders in
the Law Society are mostly the senior members of the Bar (either by graduation
or date of admission), although some active young advocates are also involved.
2.4, Other Lawyer’s Organisations
There are indications that the profession is becoming more heterogeneous
in background and more diverse in structure and function. Consequently, new
groupings have emerged to represent particular interests. In 1988, the Tanzania
Law Association was founded. Anybody with a law degree can become a
member. There is the Tanzania Women Lawyers Association (TAWLA), which
is aimed primarily at giving legal assistance to women in need. Lawyers in the
north have found the Northern Lawyers Group, which at times has been more
active in social and human rights issues than the Law Society itself
3. The Sociography of the Bar
3.1. The Cultural Origins
Unfortunately, it has not been possible to get the up-to-date statistics of the
cultural roots of advocates in Tanzania, However, one study found that by June,
1985, there were 34 advocates of Asian origin (out of a total of 121) who had
Section 15, Tanganyika Law Society Ordinance.
‘Section 17, Tanganyika Law Sociery Ordinance.
Sections 4 (1) and 49 (1) respectively of the Advocates Ordinance.
Section 4 (1) (€) ibid. and Section 20 of the Tanganyika Law Society Ordinance.
Consider, for example, the Joint Workshop on “The Role of the Media and Legal
Institutions Under Democratic Changes” which they organised jointly with the Anusha
Press Club on 28th and 29th June, 1993, at Arusha, and the soliderity the group
demonstrated in defending their fellow lawyers in the cases of Joseph Conrad D Sousa and
Collran Neole vs. tbe Minister of Hlome Affairs, op. cit, and Labay Sang’ka x. the Regional
Commissioner, Arusha, Misc. Civil Cause No. 1 of 1991, H.C:T., Arusha. Also, itis only in the
north that one heats of instances where lawyers have made a visit t0 prisons too see for
themselves the conditions obtaining there: it is only in the northern zone that this is done,
albeit only a few times per year: See the Minutes of the General Mectings of the Tanganyika
Law Society, Arusha, 28th January, 1995 and 10th February 1996, and the one held at Moshi
on 10th August, 1996.
REESE
oh The Organitation of the Profession and lis Series ms
taken out practising certificates.° Considering the level of entrance and exit of
Asian lawyers in the past decade, it is safe to assume that their present number
would be between 30 and 35, Hence, their number has not expanded in relation
to the number of Africans, which has been expanding from year to year. This
has been the trend that began with the 1970s, and has continued into the 1980s
and 1990s. With the change in the numerical equation of the Bar, its racial
composition has also changed.
3.2. Nationality
‘There ate only a few advocates who are not Tanzanians, who are still
registered as members of the Law Society. Some of these are in permanent
ptactice in Tanzania. Some are resident in foreign countries.% If those who ate
on-tesidents want to take up matters in Tanzania, all.they need to do is to pay
the prescribed fee for that year and renew their practising certificates as required
by the Advocates Ordinance. For those who work permanently in Tanzania,
they have to fulfil all the requirements of the law in respect of non-nationals
working in Tanzania. The important condition in this respect is compliance with
the Immigration Act, 1972,% and taking up a “Class A Resident Permit” issued
by the Director of Immigration Services.%s?
3.3. The Age Profile
The age composition of any group is a product of the age and rates of entry
and exit By compatison to its counterparts in other jurisdictions, the
Tanzanian Bar is still young. Despite the advanced age of entry for most
advocates, the profession has a relatively young membership. It is still not yet
time to see many retirees. With very little incentives outside private practice,
most advocates have no desire to abandon it® Most of the “exits” from the
profession have been, unfortunately, through deaths. Theré has been no
retirement by reason of age for the past decade or even longer.” This could
55 Mukoyogo, M.C. (1985): Notes on “Law Firms Organisation-National and Transnational:
Tanzania National Report”, University of Dar es Salaam (faimeo).
Sce Mukoyogo, M.C,, ibid
Section 35.
Especially section 12 (1) and (2) of the Immigration Act.
Mukoyogo, M.C., ~p. a.
Abel, R. (1988), ¢p. a, at p. 169. .
Private advocates are almost unanimous on this point: The evidence collected in this stidy
show that less than one-tenth of those presently engaged in full time practice will even
consider voluntarily resigning ftom practice to take up another job. Sec item 9.3.2., Chapter
Five, sapra
77 Interview with the former Secretary, Tanganyika Law Society, Dar es Salaam, December
1993, The Annual Report of the President of the Society for the Year 1994 showed that
there were five “exits” from the profession during the year, all of them by way of deaths:
Report of the President of the Tanganyika Law Society for the year 1994, presented at the
‘Annual General Meeting of the Sociery at Arusha, 28th January, 1995. Three of these were
full-time practising advocates.
SSsRaE 26 Chapter Sixc
have been the main exit route in an older profession. However, what one sees
today is a trend which is sure to result in an even younger composition at the
Bar. While the old hands are becoming older, the age of entrance into the
profession sccms to be coming down. Some lawyers may enter private practice
within a year or two of graduation, something which, before 1994, was
practically impossible because of the two-year requirement imposed by the
Council of Legal Education, and an arrangement which bound new graduates to
work in the public sector for at least five years27!
4. Women in the Legal Profession
‘The issue of gender has been one area of particular importance whenever
relationship between members of a particular profession is at issue. It therefore
behoves us here to throw a glance at the position of women in the Tanzania
legal profession.
4.1, The Place of Women in the Profession
‘The practice of law has for a long time been the exclusive platform of the
male professional. However, that is rapidly changing. In England, not until 1919,
when the Sex Discrimination (Removal) Act was enacted” were women
allowed to practise law either as barristers or solicitors. By 1921, there were 20
women in practice, representing 0.7% of the Bar" This number has gradually
been increasing, and by 1984 women formed 38.9% of those called to the Bar at
Lincoln’s and Gray’s Inns 3% In Tanzania, as in England, women lawyers prefer
employment in the public sector.” The security and certainty of employment in
the civil service and parastatals is a most important factor to them. It enables.
them to avoid the rigours of what is still widely perceived to be essentially 2
man’s profession.
At present there are an estimated 24 women full-time private legal
practitioners in TanzaniaӢ On the other hand, women form an important part
of the subordinate staff serving the legal profession. It is estimated that more
Si See Chapter Four, pnt
TE Abel, R. (1988) op. af, at p. 79.
mS bid
7 Tid.
‘75 Statistics obtained from interviews with law students at the University of Dar