Monthly Archives: June 2016

Splitting Regulation from Fraternity: Reforming the Law Association of Zambia

By E. Munshya LLM, MBA, MDIV 

The functions and objects of the Law Association of Zambia (LAZ) are very important in our system of law, government and politics. LAZ’s mandate is primarily derived from two statutes: The Law Association of Zambia Act and the Legal Practitioners Act. Under the LAZ Act, LAZ’s objectives can be broadly divided into the following:

  1. lawyer regulation, training and development;
  2. socio-lego-political engagement; and
  3. fraternal fellowship for lawyers.

LAZ’s regulatory objects are principally carried out through both the Legal Practitioners Committee and the Disciplinary Committee. The socio-political engagement is fulfilled by LAZ’s active socio-political engagement and lobbying on matters of legal importance. LAZ has been active in the advocacy for a new constitution and through this statutory mandate it was a very worthy and influential member of both the OASIS Forum and the Grand Coalition, two important lobby groups that advocated for a new constitution in Zambia. As a fraternal organisation for lawyers, LAZ advocates for camaraderie, self-care and represents lawyer interests before the government and the society. From 1973 to the present, LAZ has played a huge role not only in the legal development, but also in the socio-political engagement and thought. Particularly, from the advent of plural politics in 1990, LAZ has been at the forefront advocating for democratic change and reform. These are positively praiseworthy achievements.

In spite of all these obvious strengths, however, LAZ as it currently stands represents an untenable model that needs urgent reform. The model under which LAZ currently operates is no longer suitable for a bourgeoning democracy like ours. In all fairness, there is a need to reform it to make it more responsive to the needs of the public while at the same time maintaining both public and governmental confidence in an association that regulates legal practitioners. Particular areas of concern with the current LAZ legislative regime concerns its seemingly conflicting roles as a legal/lawyer regulator while at the same time serving as a fraternal organisation for the same lawyers. LAZ needs to be reformed by splitting the regulatory function (Legal Practitioners, Disciplinary, Education committees) from the fraternal and socio-political function (LAZ-at-large).

Elias Munshya New

Elias Munshya (of the Alberta Bar)

Recent concerns over LAZ’s opinions and advisories are quite justifiable particularly when LAZ advisories do not represent views held by a good number of its members. Some positions taken by LAZ have even been held to be wrong by the Supreme Court of Zambia. This is not a good position to be in for a regulator of lawyers. The regulator of lawyers in Zambia should appear to be above board and should only go to court when the regulatory side of legal practitioners is at stake. The regulator should not go to court to argue about how much tax a person owes or does not owe. Recently, LAZ president Linda Kasonde issued some statements concerning Mr. Fred M’membe’s The Post tax problems with the Zambia Revenue Authority. LAZ members are reluctant to come out in the open to provide alternative understanding of issues to their organisation because LAZ is both their fraternal organisation and their regulator at the same time. The result is that LAZ members might feel muzzled and the LAZ senior leaders might get a pass by issuing statements under the cover of statutory protection even when their members believe otherwise. However, once regulatory functions are split from the fraternal functions, the regulatory side of LAZ can be run by an independent body that will concentrate on training, disciplining and regulating lawyers without having the pressure of the burdens and expectations that come from socio-political engagement (such as tax issues). The fraternal side of LAZ can continue and can encourage its members to participate, to criticize and to reach some consensus as the association participates in the socio-political destiny of the country.

This proposal is not by any means unusual. Currently, the Legal Practitioners Committee (LPC) is an influential committee within LAZ, tasked with lawyer regulation. All that is needed in my proposal is to delink this committee from the main LAZ body and give it statutory powers of its own to regulate and discipline lawyers away from the glare of socio-political interference. If the LPC were to be delinked, it would have its own management and it could comprise of members appointed or elected by legal practitioners themselves.

Once the LPC is delinked, LAZ can then concentrate its efforts into being the fraternal body that freely engages in the world of ideas. Such a new LAZ can criticise and be criticized without practitioners fearing for their lives. Additionally, such a LAZ can go to court and lobby for socio-political positions without associating those positions to the regulators.

The model I have proposed above seems to comport with modern legal arrangements in England and Wales and other commonwealth jurisdictions. Very rarely do regulators make news commenting on socio-political issues. This role is left to other fraternal legal organisations and associations of lawyers as the regulators concentrate on the actual regulation of lawyers. In Zambia’s sister jurisdictions such as Canada, as an example, lawyers are regulated by the respective provincial law societies while the Canadian Bar Association (CBA) remains a fraternal organisation of lawyers based on mutual and voluntary membership. In the United States, most jurisdictions have a similar arrangement. The American Bar Association (ABA) is a fraternal organisation whereas each state has its own bar regulators. Both the CBA for Canada and ABA for the USA freely comment on socio-political issues, lobby on behalf of lawyers, present and recommend training for lawyers, and provide a fellowship of some kind for lawyers. In South Africa lawyers also have a voluntary fraternal organisation while the regulatory side is handled by a different body depending on the province.

Such arrangements would be much more suitable for Zambia as well. In our democracy, it becomes necessary to split regulatory and fraternity functions of the Law Association of Zambia.

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Suggested Citation: Munshya, E. (2016). Splitting Regulation from Fraternity: Reforming the Law Association of Zambia. Elias Munshya Blog. (www.eliasmunshya.org) June 30, 2016

 

 

Tax Appeals Tribunal Act 2015

Here is the Tax Tribunal Act (2015).

TAX APPEALS TRIBUNAL ACT 2015

It comes courtesy of http://www.zambialii.org.

Thank you,

– eliasmunshya.org

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Elias Munshya, LLM, M.A., MBA, M.DIV. (of the Alberta Bar)

Dig Deeper & Pay: The Past Newspaper’s simplified guide to paying tax in Zambia

E. Munshya, LLM, MBA, MDIV

Let us suppose that a Mr. Derrick Mumba goes into the business of selling newspapers in Milenge. Let us call it, The Past Newspaper (no pun intended). Mr. Mumba intends to work in a field he is passionate about and to make some money out of it. This would be a win-win.

The government of Zambia (GRZ) makes its money from people like Mumba using an old fashioned system called taxation. GRZ encourages people like Mr. Mumba to do what they are passionate about, then once they make their money, the government takes a portion of the profits (So unfair, right?). As governments are typically inefficient to collect tax, the legislature creates a firm that would collect taxes on its behalf: Zambia Revenue Authority (Zambia) and Canada Revenue Agency (Canada).

The legislature gives ZRA and CRA extensive powers to search your pockets and determine how much you made last year. It can also search your cash register or do some nasty stuff, as allowed by law, to chase your income.

Let us assume that Mumba sells newspapers for K1,000,000.00 in 2010. Obviously, the legislature will state how much tax rate he should pay out of his profits. Mumba arrives at his profit after he has taken out all the operations, capital and several other expenses (transportation, ZESCO, and rent). After Mumba has taken out all the expenses you can ever think of, and as far as the law would allow, he is required to declare a profit and from that profit pay tax to ZRA. Let us for argument’s sake say Mumba made a profit of K100.00. At the simple rate of 10%, Mr. Mumba is supposed to pay a K10.00 to ZRA.

Ironically, the law gives ZRA powers to make Mumba its agent. Mumba’s workers are supposed to pay taxes from the salary that he pays them. ZRA requires Mumba to withhold an employee’s tax (PAYE). Workers in Zambia pay taxes by law. Parliament determines the rate. Some workers are taxed at 0%, meaning Mr. Mumba cannot deduct any money from their salary. If a worker’s tax rate is 5%, Mumba is expected to act as the agent of ZRA to collect that amount. Suppose Sibeso works for Mr. Mumba and her salary is K50.00, Mr. Mumba is supposed to act as the agent for ZRA and withhold K2.5 from Sibeso for further remittance to ZRA. That K2.5 is not Mr. Mumba’s, it is ZRA’s.

Mumba also interestingly sells adverts in his papers. A Dr. Ng’anga Soweto places an advert in The Past to woo customers to his Traditional Clinic in Kabulonga. Each person who buys space in the Past Newspaper is supposed to pay a tax to ZRA. For some reason ZRA really likes to tax people and finds creative ways to get money from ordinary people like you and me. Dr. Ng’anga’s advert costs K20.00, but ZRA asks Mr. Mumba to be its agent and collect K1.00 tax, on top of the K20.00. That extra K1.00 is supposed to be remitted to ZRA, it does not belong to Mumba.

From our illustration, Mr. Mumba has at least 3 payments he is supposed to make to ZRA: a portion of his profit, withheld PAYE and tax on adverts. Sounds simple, right?

With all these payments however, Mr. Mumba, in this imperfect world, might deduct from his workers and yet fail to take the money to ZRA on time. As for the money from Dr. Ng’anga, Mr. Mumba might conveniently forget. Anything can happen. So to force compliance, the law gives ZRA very strict regulations to ensure that Mr. Mumba pays ZRA its money.

Years may pass by as Mumba neglects to remit ZRA money. ZRA may send its officers, but Mr. Mumba apparently could have a very powerful angel from Independence Avenue. Each time ZRA goes to Mr. Mumba’s Past Newspapers to collect the remittances, they may not succeed because Mr. Mumba has friends in high places guarding his Ubufumu offices.

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Elias Munshya, LLM, M.A., MBA, M.Div.

No one can hide from ZRA forever as angels frequently change addresses from Independence Avenue to Embassy Park. ZRA may finally get through and send Mumba the bill. The law recognises that ZRA might be mistaken in the way it calculates how much Mr. Mumba owes. In those circumstances, parliament has created a tax tribunal. This is a quasi-judicial body arbitrating tax disputes between ZRA and the taxpayers. Mr. Mumba may state his case and say that ZRA is mistaken as Mr. Ng’anga did not pay the whole K20.00. The tribunal will look at the evidence and make its ruling. Mumba may not end there, however, if he is not happy with the ruling of the tribunal he then can go to the High Court. The High Court will hear the matter. If Mumba is not satisfied with the High Court, he can appeal to the Supreme Court. Through all this, and as Mumba goes on doing business, he is still expected to continue collecting money on behalf of ZRA and to remit it. As long as Mr. Mumba is in business he is supposed to act as ZRA’s agent. The agency relationship does not terminate simply because Mumba has taken ZRA to court.

When the Supreme Court finally rules, and it would usually rule in favour of ZRA (Tax Law is not very flexible), Mr. Mumba is supposed to dig deeper and pay up. If he can’t pay, unfortunately, ZRA has wide powers to liquidate Past Newspaper assets in Milenge to pay the debt Mumba owes from unremitted PAYE, Dr. Ng’anga’s tax, and profits of his business.

Sounds familiar, doesn’t it?