By Elias Munshya, LLM, MBA, M.DIV.
I commend parliament for considering changes to the Law Association of Zambia Act (LAZ Act). I agree that the LAZ Act needed reform to make it more responsive to present realities. However, the proposed Law Societies of Zambia Bill that is being considered to replace the LAZ Act requires further work for it to bring about real change.
Any Reforms Must Have Input From LAZ
The new bill seems to have had no input from the current Law Association of Zambia (LAZ) Council or its members. While I have had, some reservations regarding some seemingly partisan positions that the current LAZ Council and leadership have taken, I still believe that LAZ must be involved in any discussions involving its future and the future of legal practice in Zambia. I urge the parliamentarian Hon. Kelvin Sampa to contact the LAZ president and council and try to engage them in the discussions to repeal the LAZ Act and in any further deliberations to pass the new bill. I do not believe that the path taken by our politicians is a wise one now. LAZ’s perceived partisanship considered, it nevertheless, enjoys the statutory responsibility to be consulted, particularly, on matters that deal with the regulation of the legal profession in Zambia.
The Bill Must Address Inadequacies with the LAZ Act
The new Bill does not quite address what is inadequate with the current LAZ Act. What the new bill is proposing to do is just to have two or three or four more so called “law societies” without a fundamental change to the basic template in the way lawyers associate and get regulated. We do not need to create more LAZs to resolve the current problems we have with one LAZ. You cannot cure a problem you have with one association, by creating many more associations. The solution should, first and foremost, be such that it creates some needed reform and change to the template, rather than just duplicate and multiply the current LAZ template.
Reforms Should Split Regulation from Fraternity
The problem with the current LAZ Act concerns its dual role as both a regulator and a fraternal association of lawyers. I propose that the first act of reforming LAZ should be aimed at delinking regulation from fraternity. The Law Association of Zambia must be split into two: a regulator and a fraternal representative association. If the government still wants to liberalise the formation of fraternal associations, it can do so while maintaining a single non-partisan and apolitical regulator.
The regulator I suggest can be called the Law Society of Zambia (LSZ) (not to be mistaken with Hon Sampa’s bill, nevertheless). This regulator will concern itself with self-regulation of the legal profession. It will not have a broader mandate of political advocacy, but will be strictly a body that looks at standards, licensing, education, discipline and other general regulatory matters of lawyers. The LSZ will not have the mandate to provide political advocacy. The LSZ can easily be created from the current LAZ committees such as the legal practitioner’s committee and the disciplinary committee. These two committees and their current members can be transformed into the LSZ and begin the duty of a non-political role to regulate how lawyers are trained, retained, disciplined and structured. It can have its own rules adapted from the regulatory regime governing under the current LAZ Act, and the committees that deal with education, discipline, and licencing.
After the regulatory role is taken over by the LSZ, the current Law Association of Zambia can then be transformed into a voluntary representative body of lawyers with unrestricted powers and duties to represent its members and participate in advocacy. If need be, the government can liberalise this fraternity by encouraging the formation of various law associations, as envisaged by Hon Kelvin Sampa’s Law Societies Bill. The law associations will be voluntary, fraternal, and can do political and general advocacy. The associations can also function within the framework of civil society.
If our members of parliament do not agree with me on the above-noted points, and insist on proceeding with the current Law Societies Bill, 2017, I kindly request that they pay attention to the following matters of huge concern:
First, the Bill in its current form should require concurrent changes to other legislation such as the Legal Practitioners Act (LPA). The parent legislation that regulates lawyers in Zambia is the LPA and it seems that a bulk of its powers are delegated to the Law Association of Zambia, and in some respects to the Zambia Institute of Advanced Legal Education (ZIALE). There is need to look at allied institutions when considering the Bill.
Second, on membership to the law societies, the Bill at clause 7 opens membership to “any person who is ordinarily resident in Zambia.” This in my opinion discriminates against Zambian lawyers spread all around the world who would like to be members of the Zambian bar. This provision appears to have been lifted from the current LAZ legal regime, a regime that was created way before the introduction of dual nationality in our Constitution. With dual nationality, it is in the best interest of our nation to have Zambian lawyers in the diaspora satisfy the residence criteria to be members of the Zambian bar. The world has now become a global village and Zambian professionals in the diaspora provide a valuable leverage for the growth and development of Zambia. We propose that clause 7 of the Bill recognises that membership will be open to any citizen of Zambia and any person who is ordinarily resident in Zambia.
Third, clause 15 of the Bill requires twenty years at the bar for one to be elected vice-president or president of the law society. This requirement is way too high. For a country with only just over 1,000 lawyers, it is a bar too high to set eligibility for presidency at twenty years. Zambia currently adds about 200 lawyers per decade. In the fifty years of our independence we only have slightly over a 1000 lawyers, putting a twenty-year requirement further diminishes the talent pool from which to draw leaders of the law societies. Since the positions of president and vice-president are electable positions, we propose that the twenty-year requirement be removed altogether. It is unnecessary.
Fourth, I cannot avoid it, but notice here that the creation of multiple law societies will not actually help protect the public interest. The Bill suggests that each law society will have its own licensing committee, disciplinary committee, legal practitioner’s committee etc. This duplication of roles cannot protect the public and neither is it in public interest. I, therefore, return to the proposal I made in the first part of this article, to create a single apolitical regulator while liberalising association, fraternity, and advocacy. In my opinion, having a single regulator while allowing the formation of several other fraternal law associations will protect the public, while ensuring that lawyers can freely participate in society as active members of civil society.
Suggested Citation: Munshya, E (2017). Hon. Kelvin Sampa’s Law Societies Bill (2017): The Good, The Bad and the Ugly. Elias Munshya Blog. (www.eliasmunshya.org). March 24, 2017.
Note: This article was also published in Zambia’s leading independent newspaper, the Zambia Daily Nation on March 24, 2017.
Elias Munshya practices in Calgary, Alberta with interest in civil litigation, human rights, and regulatory law. In addition to degrees in theology and counseling psychology, Elias holds law degrees from England, Wales, and Chicago, USA.
Categories: Political Theology