When London Calls: Musa Mwenye, legal ethics and the politics of client confidentiality
E. Munshya, LLB, LLM, MDiv.
There is nowhere to hide anymore. Big corporations that dare pollute our rivers and poison our waters should be held accountable anywhere around the world. A word of caution to big companies, please treat all stakeholders well and be socially responsible. Polluting our rivers and poisoning the sacred springs of Chingola will result in dire consequences for you. Companies such as Konkola Copper Mines and Mopani Copper Mines now have the added responsibility due to one important fact: the world is watching. Globalisation now has legal implications for global corporations. As they mine copper in Solwezi and as they dig for gold in Kolwezi, multi-national companies can now be sued for polluting the Kafue River in a London court or in an Alberta court. A Zambian plaintiff who has suffered harm due to the negligent conduct of big companies can now with the click of a button hire a lawyer in London to hold London listed companies to account.
This I believe is what happened in Dominic Luswaniso Lungowe and others versus Vedanta Resources PLC and Konkola Copper Mines, a case which is making its way in London’s High Court of Technology and Construction. This case involves several of our people who are claiming that they suffered various health problems due to KCM’s negligence. Lungowe sued in London and obviously, the London court had to enquire into the issue of jurisdiction and venue: was London the best court to litigate KCM’s alleged misconduct which took place in Chililabombwe’s Kafue River? Before the London court even goes ahead hearing the matter it must satisfy itself that the matter is legitimately before it. Lungowe’s London lawyers needed to convince the London court that the matter was legitimately before it because KCM and its parent company are listed in London and that Lungowe and others stand a better chance at getting justice in London than Lusaka. To convince the London High Court, Lungowe had to bring some legal experts from Zambia to buttress the position that the plaintiffs are likely to receive justice in London. Lungowe’s London lawyers found an expert: Musa Mwenye SC. It is this expert testimony Mwenye gave in the London court that really angered President Edgar Lungu.
Lawyers like Musa Mwenye should not have to suffer for doing their job. Our society should not impute upon the lawyer the misconduct of the lawyer’s client. Lawyers have very difficult tasks to perform in representing clients, both savoury and unsavoury ones. No lawyer should be crucified simply because they were doing their job either of representing a criminal or representing people like Lungowe who are claiming to have suffered severe health problems as a result of the negligent conduct of a London listed corporation. Even if Mwenye were just appearing as an expert witness in London, he should not be made to suffer for helping Lungowe and others find justice in London. The decision to sue in London is a luxury afforded to Zambian citizens in this globalised world. Our citizens should not be demonised for going to London to sue a London listed company that pollutes their drinking water. If our people were to want to sue in a Canadian court, they will find very friendly counsel to help them navigate Alberta Court of Queen’s Bench! In London, Mwenye’s testimony was to the effect that Lungowe and others would stand a better chance at accessing justice in London than they would in Zambia. Musa Mwenye may have been right. But President Edgar Lungu in a sense was justified in demanding better conduct from Mr. Mwenye.
Mr. Mwenye is the past Attorney General of the Republic of Zambia. His client was the juristic person of the Republic of Zambia. He was leader of the Zambian Bar and principal legal advisor to the executive, the legislature and the judiciary. Mr. Lungowe’s London lawyers found it prudent to engage the expert advice of Mr. Mwenye to testify before the London court why it would be difficult for the plaintiffs to access justice in Zambia. It was indeed a coup, a huge conquest for the plaintiffs. Mr. Mwenye, however, as a former Attorney General should have recused himself from going to London. The same justice system in Zambia was his client, how then can he turn himself against the very client he faithfully served for years? Those who serve as attorneys general should know that Zambia’s justice system is their client. They come into contact with both the good and the bad of our system. The AG knows the inner workings and the flaws of their client. It is unconscionable for them to go and spill the beans in a foreign court about the failing of the Zambian justice system. When a former attorney general testifies against the Zambian justice system in a foreign court, it is not general information they are peddling, it is very specific inside knowledge of their former client. Mr. Mwenye could have recommended other legal experts to travel to London. He had a conflict of interest.
After President Lungu’s outburst, Mr. Mwenye issued a comment to the effect that he was trying to make it easier for the poor of Zambia to have access to justice. I am quite flattered by the State Counsel’s commitment to access to justice for the poor. But I am afraid the honorable state counsel might need to direct his energy to the things that could actually lead to better access to legal services in Zambia. Zambia has very few lawyers. It has about 1,000 lawyers in a country of 15 million people. This lawyer to population ratio makes it impossible for the ordinary poor of Chililabombwe to access justice. I call upon Mr. Mwenye to help resolve this lawyer shortage in Zambia by advocating for better pass rates of lawyers at the Zambia Institute of Advanced Legal Education (ZIALE).
President Lungu’s outburst should be taken in context. The President has not really liked the ex-AG from the time Mwenye stood his ground to take away the acting presidency from Lungu to Guy Scott. I do not think Mwenye’s London conduct deserves sanction. I appeal to the Law Association of Zambia (LAZ) to ignore calls to discipline Mr. Mwenye. This could as well be a learning opportunity for all Zambians and all those those who might be called upon to serve as attorney general of our republic not to go to London or Calgary badmouthing a former client.
Suggested citation: Munshya, E. (2016). When London Calls: Musa Mwenye, legal ethics and politics of client confidentiality. Elias Munshya Blog (www.eliasmunshya.org) (March 24, 2016)