By Elias Munshya, MBA, LLM, M.DIV.
Now that the Zambian parliament could be debating ways to revamp the way lawyers are regulated in Zambia, it is prudent to investigate how the Zambian statutes regulating legal practitioners compare with those in the Southern Africa Development Community (SADC) region. The SADC region obviously includes several countries who do not follow the English common law system. This article focuses only on a handful of countries with the common-law system: Zimbabwe, Botswana, Swaziland and Malawi.
Primary home statutes that regulate lawyers in these countries are very similar to each other. It seems that the respective legal practitioners’ acts were adopted from the English colonial model, and that model remains persistent to date. These home statutes differ in name, but they remain essentially the same in effect and practice – they regulate lawyers.
There are several similarities in the way these jurisdictions regulate legal practitioners. Legal practitioners are governed by a corporate body of some sort. The Law Association of Zambia (in Zambia), the Malawi Law Society in Malawi or the Law Society of Swaziland (Swaziland), are the examples of the common nomenclature.
The statutory objectives of the lawyer bodies can be grouped into three categories:
- regulatory objectives,
- representative-fraternal objectives, and
- politico-civil objectives.
Regulatory objectives have direct bearing on the education of lawyers, fitness for practice, guidelines, licensing and disciplining of lawyers. Representative-fraternal objective are aimed at bringing lawyers together for fellowship, education or promotion of mutual social interests. Politico-civil advocacy objectives aim to participate in the general politico-civil advocacy and uphold the rule of law in their respective countries. It is on this point that one notices the differences between the governing statutes and objectives of the lawyer bodies in Swaziland, Zimbabwe, Botswana, Malawi and those of Zambia. By far, the Law Association of Zambia has more objectives in the third category than any other lawyer bodies in SADC. Could this explain why LAZ is more politically outspoken than their counterparts in the southern region?
The Law Society of Zimbabwe lists 18 statutory objectives and powers. Of these, only 2 can be said to fall into the category of politico-civil advocacy. Twelve statutory objectives of the Law Society of Zimbabwe are aimed at direct lawyer training and regulation. The Zimbabwean statutes do not prioritize politico-civil advocacy for its lawyer body.
Contrasting Zimbabwe with Zambia, the difference is noticeable. The first statutory objective of the Law Association of Zambia is “to further the development of law as an instrument of social order and social justice and as an essential element in the growth of society.” The LAZ objectives do not begin with the regulation of lawyers at all. LAZ objectives seem wider in scope and in their view of the role of the lawyer regulatory body. In fact, of the 15 statutory objectives for the Law Association of Zambia, 8 are dedicated to politico-civil advocacy, a huge reverse when compared to Zimbabwe or Swaziland. LAZ is definitely much more attuned to political and civil advocacy than its counterparts in the southern region. The LAZ Act only dedicates 5 of its statutory objectives to lawyer regulation, training or discipline. It would be interesting to study how we got our LAZ Act. Who drafted it? What made them make LAZ so inclined to politico-civil matters rather than professional regulation by departing so markedly from the colonial model of the legal practitioner’s acts?
The statutory objectives of the lawyer bodies give us a guide as to where it would focus its attention. That being the case, lawyer bodies in Zimbabwe, Swaziland, Malawi, or Botswana focus their attention more on regulation of its lawyers than does Zambia which focus more on the wider advocacy as a custodian of the law for the greater good.
Perhaps as the government and the public are asking questions about how the legal profession may be developed and advanced in Zambia, it could be the time to retool the Law Association of Zambia from a focus on politico-civil advocacy to regulation and capacity building of the profession. Zambia cannot afford to sacrifice lawyer development at the altar of politico-civil engagement. Or if change is too difficult to come by, LAZ could be encouraged to give as much attention to regulation as it does politico-civil advocacy.
I should point out here that the Zimbabwean model is by no means a good standard. But it helps Zambia to realise just how much professional and regulatory development has suffered due to an over-focus on political advocacy.
If we are looking at amending the LAZ Act, I would suggest that we also focus on its objectives or perhaps make the LAZ Act much more inclined towards the profession. Zambia is a democracy and lawyers will continue to play a role in its governance. But Zambia also needs good lawyers who are very well developed in their court advocacy skills and in many other legal areas apart from constitutional or political law. The law is much wider than an over focus on constitutional law and disputes. We need commercial lawyers, legal researchers and indeed maritime lawyers. This can only be achieved by a regulatory body that is truly focused on lawyers serving the public good rather than just engaging in the never-ending political squabbles.
Looking at the recent press statements from LAZ would give you the picture. LAZ was living its statutory objectives by issuing politico-civil statements in almost 95% of the time. The question is, is LAZ as committed to enhancing the legal profession as it is committed to commenting about everything political under the Zambezian sun? If we need a more professional regulator, now could be the right time to do so. But as always, we might need to start from the very statute that put us in this situation – the LAZ Act (CAP 31) that requires reform.
Suggested Citation: Munshya, E. (2017) Does the Law Association of Zambia Act (CAP 31) Over-Politicize Zambia’s Legal Profession? Elias Munshya Blog. http://www.eliasmunshya.org (March 30, 2017)