Law Without Fear: Why LAZ should permit lawyers to comment publicly on legal subjects
By E. Munshya, LLB, LLM, MBA
For a nation that should be benefiting from the legal expertise of its lawyers, it is quite absurd that Zambian regulations forbid lawyers from publishing on legal matters without permission from the Law Association of Zambia. It is rather despondent that in a modern democracy we should have such a rule in place. There is no justifiable reason why members of the Zambian Bar should be forbidden from commenting on legal matters that are in public domain. Any talk of reform of legal practice must urgently address this matter so that, as YALI has proposed, lawyers are given back their constitutional right to hold and to spread their opinions.
According to Statutory Instrument 51 of 2002, Rule 17 (5) -(7), a practicing lawyer needs prior permission from the Legal Practitioners Committee or the Council of the Law Association of Zambia if they are to write or cause to be published “press articles on legal subjects”. This rule also forbids practitioners from appearing on “television or radio or any electronic media, to discuss legal subjects” unless prior permission is obtained from the Law Association of Zambia. The rules then provide the main reason why prior permission is needed: “to enhance or maintain the good name of the legal profession” (17 ).
Enhancing the “good name” of any profession is a very ambiguous concept, particularly in this situation. Lawyers do not exist to maintain a good name; they exist to serve the public. This is not to say that a good name is not important, obviously, it is. However, the nobility of maintaining a good name should not lead to a prohibition of legal opinions. It is the public that has given lawyers an exclusive monopoly and this monopoly should lead to public service and not some idealistic motive of maintaining the “good name”. How does the public benefit from the good name of lawyers, if lawyers cannot comment publicly about legal matters that are in public domain? Currently, these rules mean that community radio stations, newspapers cannot feature members of the Zambian Bar unless they have prior LAZ permission. This creates a huge information gap in public service by leaving the little legal commentary going on in the public domain to legal laymen who may not have adequate depth and appreciation for the legal subjects they so zealously expound.
I do not think that two lawyers arguing on the radio about the law would be worse than the two arguing in court about the law. Lawyers’ legal argument and commentary done on Radio Mano does not make it any more threatening or confusing than legal argument done in court briefs, sworn affidavits, and court submissions.
The rules are also ambiguous in that they do not quite specify what is meant by a “legal subject”. Does a lawyer need LAZ permission to appear on Radio Liseli to comment on the constitution? The constitution is a legal subject. Are lawyers forbidden from commenting on it? What about legal subjects such implications of Female Genital Mutilation, grade twelve requirements, and theft of public resources? Do lawyers need LAZ permission before they can comment and publish on such public interest matters?
The statutory role of the Law Association of Zambia must be understood and appreciated. But the Association must not be seen to be too restrictive of people’s civil liberties. Lawyers should be permitted to comment publicly on issues that interest them. The idea that by restricting lawyers’ rights we are somehow enhancing the practice of law is wrong at both law and common sense. Lawyers should not be reduced to zombies in public life who only resurrect when making passionate arguments in courts of law.
In any case, these regulations seem to be quite absurd in practical terms. There is a newspaper, for example, which is owned by a member of the Zambian Bar which daily blurts out editorials which address legal subjects. Unless the owner of that newspaper has gotten permission from LAZ and we all do not know about it, that newspaper’s incessant commentary on legal subjects demonstrates the weaknesses in the regulations and why they should not be tolerated in the first place. Does this mean that lawyers who own newspapers can go on to comment on legal subjects while those who do not run newspapers should not? The statutory instrument must be scrapped and replaced.
Some believe that if lawyers are permitted to write articles, then there would be too many opinions flying around in the public domain. To be clear, there are already too many opinions flying around in the public domain, but there is one segment that is truly missing: the segment of members of Bar. It would be in the interest of both democracy and common sense to have lawyers receive the liberty to have opinions and express them freely without having to fear for their licence.
The public will be better served not only by hiring lawyers to represent them in court or in solicitor work but also when lawyers give their opinions on legal matters. I just hope that the Law Association of Zambia as they meet in their general meeting this weekend will find time to consider the changes needed to its regulations to address this important issue. Lawyers are a valuable segment of our society. And we do not need to hear from them only when they make objections before justices, but also when they make objections in a newspaper like the Daily Nation.
Suggested Citation: Munshya, E. (2016). Law Without Fear: Why LAZ should permit lawyers to comment publicly on legal subjects. Elias Munshya Blog (www.eliasmunshya.org) (May 1, 2016)