Monthly Archives: December 2016

The Law Association of Zambia: My proposals for reform

By E. Munshya, LLM, MBA, MDIV.

Change must come to the Law Association of Zambia (LAZ). LAZ in its current form lacks the institutional strength needed to serve Zambians. However, the debates about the future of the Association seems to be so polarised that it is sometimes confusing to tell what exactly is going on. The genuine calls for the reformation and reorganization of the Law Association of Zambia seems now to have been hijacked by supporters of the ruling Patriotic Front such that it becomes difficult to distinguish between reforms that are needed to enhance the profession and reforms being advocated by the ruling party to control the legal profession.  I doubt whether the PF cadres mean well about the future of LAZ. It appears to me the ruling PF and its cadres are not interested in a reformed LAZ that serves the needs of Zambians, but are much more interested in a LAZ that is more amiable to the desires of the ruling party politicians. To make it very clear, those of us who are asking for the reformation of the Association are doing so on very different grounds than the ruling party cadres. We will be doing a great disservice to this debate if we lumped those advocating for change into one political mould.

My proposals are as follows. Currently, the Law Association of Zambia primarily derives its existence from three sources:

  1. It derives its power from the Legal Practitioners Act (LPA), an act that explains the regulation of lawyers in Zambia.
  2. LAZ derives its powers from the Law Association of Zambia Act, which explains the objects of LAZ and how it is to be managed.
  3. The common law and tradition inherited from the British.

Curiously, both the LPA and LAZ Act combine two elements into one entity: regulation and fraternity. LAZ serves as the regulator of lawyers called to the Zambian bar, and it is also a fraternal association for lawyers and other allied individuals. It is this character of the Law Association that is problematic right from the start. My proposal is to de-link regulation from fraternity so that LAZ the regulator becomes distinct from LAZ the fraternal association. My proposal has got nothing to do with the current direction of the LAZ council or its leader, and has everything to do with maintaining a regulator whose sole purpose will be to train, admit, and licence lawyers for the national good while leaving the advocacy and fraternal goals to a different association.

Elias Munshya New

E. Munshya

LAZ already has the infrastructure for change. For example, several LAZ committees which carry out the regulatory function can very easily be delinked from the main association and together form the regulatory body for lawyers. This committee includes the Legal Practitioners Committee and the Disciplinary Committee. To that we can add the educational committee, by whatever name called. This new body, we can for example, call the Law Society of Zambia (LSZ) would be tasked with education, training, admission to the bar and discipline of Zambian legal practitioners. The LSA can also be given the mandate to licence other allied professionals such as paralegals. The Law Association of Zambia (LAZ) can then continue as an association of free minded lawyers sharing information and participating in democratic advocacy and governance by intervening in noble causes such as the Oasis Forum or the Grand Coalition.

The LSZ as a regulator will not be making running commentary on politics. Its role will be to licence lawyers and ensure that lawyers respect the rule of law and serve the public interest. The role of advocacy and political commentary can be left to an association. The LSA will be self-governing. That is, it will maintain the common-law tradition of a legal profession that regulates itself without political interference. The LSA can also become an independent arbiter for disputes that must deal with the profession.

How then can we achieve these reforms?

  1. My proposal is that parliament is the right place to start. There must be political will to amend both the LPA and LAZ Act. However, in making such statutory changes, parliament and the executive must consult with lawyers.
  2. Lawyers must know that it is in their best interest to have a regulator that is not soiled by political advocacy. While there is nothing wrong with political advocacy, there is everything wrong if a regulator gets involved in political advocacy.

You do not need a regulator arguing in court about how electoral petitions must be handled! Leave that to lawyers and the courts or to an association of like-minded people and leave the regulator out of political squabbles, even if the squabbles have to do with the law.

Some citizens have gone to court to seek help from the courts to heal the Law Association of Zambia. With due respect to those citizens who have done so, I doubt if the courts of law are the right fora to resolve such problems. Courts cannot heal that which must be cured by legislative action. If the current Justice Minister can do anything to enhance the legal profession in Zambia, he should consider pushing in reform that delinks regulation from fraternity in the way the legal profession is regulated under both the LAZ Act and the LPA. This debate must continue and I hope to continue contributing to it in the coming weeks and months.

Amos Chanda, Judges and the Challenge of Reforming the Law Association of Zambia

E. Munshya, LLM, MBA, M.DIV.

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Amos Chanda – State House Spokesperson

Words alleged to have come out of Mr. Amos Chanda’s mouth concerning the judiciary were concerning. In fact, they were dangerous. I cannot belabour any further on the points raised by the Law Association of Zambia (LAZ). President Lungu has defended his spokesman. He is saying that we all misunderstood Mr. Chanda. I hope that is true. But we cannot all be mistaken in what we heard Mr. Chanda say. It is a concern that the spokesperson for the president should be having a wide-ranging media interview that trots from one topic to another during the time that his principal is away visiting a foreign country. In our democracy, the president’s spokesperson is not supposed to be spewing government policy and giving political statements that outline the Executive’s priorities. Zambians did not elect Mr. Chanda. Zambians elected Mr. Lungu. At most, Mr. Chanda is a senior civil servant implementing policies of elected politicians. This is the anomaly we have seen recently where after each cabinet meeting, it is Mr. Chanda who briefs the press about the resolutions of cabinet. President Lungu should put a stop to this so there is a clear demarcation between the civil service and its supervisors, the elected politicians. In the Zambian system of government, the spokesperson for the Executive branch is not Mr. Chanda but Ms. Kampamba Mulenga, the minister of information. She is the one who informs the public of government’s political agenda and priorities. And that is how it is supposed to be so that the people can freely debate political policy and hold politicians to account.

Mr. Chanda’s comments that judges risk “Kenya-styled” reforms are quite ill-informed. First, Zambia is not Kenya and we have a very different judicial and constitutional history. Second, Mr. Chanda does not seem to make sense to the extent that he makes it sound like the executive is a very small player in the current structure of the judiciary. Of all the presidents Zambia has had since 1964, only two presidents have had tremendous imprint on the structure of the judiciary: President Kaunda and President Edgar Lungu. In 2 years, President Lungu has by far transformed the structure of the judiciary more than any president. It is under his rule that we have had an expanded judiciary with several new courts including the Constitutional Court and the Court Appeal. All this myriad of judges was appointed by President Lungu embossing his image for many years to come. To suggest that the judiciary could be changed under the Kenya-styled themes is being disingenuous to the tremendous influence of Mr. Chanda’s own boss on the current structure of our judiciary. Point at the new courts and all the new judges and it leads to one appointing authority: Edgar Chagwa Lungu doing in 2 years what took Kaunda 27 years.

On the rulings of the judges, Mr. Chanda may have some legitimate concerns. But Mr. Chanda should channel concerns in a way that respects our processes and not by throwing a tantrum on television (tantrum is an exaggeration; Chanda is very soft spoken). Clearly, the Munali decision from Justice Musona does not look strong at law and common sense. It does not look convincing. But the only way to reverse it is by lodging an appeal and convince the constitutional court judges. It should not be by intimidation. The Lusaka Central petition decision is quite another matter and without delving any further so as not to sub-judice the case, it is a difficult case to overturn on appeal. Let us wait and see. When a high court judge makes a mistake of law or fact, parties have the right to appeal. That is how we resolve legal problems. We do not resolve legal problems through veiled threats. I have tremendous faith in our constitutional court that it will fairly look at Munali and Lusaka Central once the appeals come before it.

13524379_10154251631640528_1091952662934062325_nHaving dealt with Mr. Chanda, we need to turn to the next challenging issue. The role of the Law Association of Zambia when it makes statements that supporters of the ruling party find unfair. I believe LAZ, as a regulator, must not be taking sides in political battles. Just as we are demanding that Mr. Chanda should be politically neutral, we also should demand that the regulator of legal practitioners in Zambia be politically neutral. The regulator cannot take overt stands on the law that seem to contradict and divide the people it regulates. The solution, therefore, is to split LAZ into two independent branches: one for regulation and the other for a fraternal association of like-minded lawyers. Currently, there is always confusion when LAZ takes a position whether it is in its capacity as a regulator or as an association of free-spirited lawyers. The calls that Mr. Chanda be well behaved as a spokesperson of the president, is the identical call for LAZ to make some effort to advocate before government that LAZ gets split to avoid confusion. LAZ is right in condemning Mr. Chanda, as an association. But it has no business taking such political stands as a regulatory body. If Mr. Chanda were to go to court or to sue the LAZ President for defamation (if she was wrong on what Mr. Chanda said), it would still be a LAZ regulated lawyer who would appear in court for Mr. Chanda against LAZ. This would be a potential conflict.

There is more to say about the challenges for LAZ reform. I hope to look at it in detail in future. But for now, we are concerned with Mr. Chanda just as much as we are concerned with the continued politicization of the entity that is supposed to regulate legal practitioners in Zambia.