By Elias Munshya, LLM, MBA, M.DIV.
Professional regulation of lawyers must be undergirded by several principles. First, the legal profession must be self-regulating. Self-regulation in the context of lawyers means that lawyers license themselves, assess the ritual fitness of practitioners, discipline themselves and promulgate their own rules of conduct. The principle of self-regulation is very important and must always be respected. Lawyers must not be subject to the regulation of the state. Lawyers should license themselves and not give over this cardinal element over to the state. Any amendments to the Law Association of Zambia Act and the Legal Practitioners Act must respect the fact that lawyers must have the room and the fortitude to regulate themselves. It would be very sad if lawyers lost the ability to regulate themselves.
Secondly, lawyer regulation must have the public interest at heart. Lawyers in self-regulating themselves must commit themselves to respecting and upholding the public interest. The question lawyers must ask themselves is: how can we best serve the public? It is service to the public that must the cardinal and driving force behind lawyer self-regulation.
Third, lawyer regulation must take interest in all the elements that make a good, competent and ethical practitioner. Any regulation of lawyers, must also empower the regulator to regulate law schools. Under the current regime, law schools are not in any way amenable to the jurisdiction of LAZ as the regulator. I find this to be very retrogressive. It is important to empower the regulator to have jurisdiction over the quality of legal education students are receiving in law schools. Under our higher education act, Zambians can register a university and establish a law school without input from legal regulators. I think this should be corrected. The regulator must be able to provide the needed academic guidance of what programs of study are acceptable for the future practitioners. There is concern that Zambian law schools are producing sub-standard law graduates. In some cases, LLB graduates of some Zambian law schools cannot string a sensible sentence together! That is very sad and needs urgent improvement. Several jurisdictions have gone on to require that the qualifying law degree be a second degree. Most developed common law jurisdictions such as the US, Canada and Australia now almost require that the qualifying law degree be a second degree. In Africa, there has been chatter that the Nigerian Bar Association would be requiring the qualifying law degree to be a second degree. I have no doubt that making the qualifying law degree be a second degree would help graduate more academically astute LLB holders.
Fourth, the regulator of lawyers must have as its primary role the regulation of lawyers. What I mean by this is that the regulator must concentrate on standards, competence, discipline, licencing, and training of lawyers more than anything else. The Law Association of Zambia Act has a serious incongruity in this regard. It seems like in 1973, parliament created a politico-civil advocacy group and then tasked it to regulate lawyers instead of creating an organisation that regulates lawyers and yet has some ability to engage in politico-civil advocacy. The LAZ Act, as it I had mentioned last week, is very unusual from other legal regulatory acts in the common-law jurisdictions. The objectives of LAZ in the LAZ Act seem to be more focussed on politico-civil advocacy than actual regulation of lawyers. My advocacy is simple in this regard: any association that regulates lawyers, must regulate lawyers first and foremost! This is not the case with LAZ as its home statute makes it concentrate more on politico-civil advocacy than on lawyer regulation. For those interested, just go to the websites of the Law Society of Swaziland, the Law Society of Zimbabwe or check the Malawi legal practitioner act and you will see that Zambia’s LAZ Act has departed quite remarkably from commonwealth norms.
My suggestion here does not in any way mean that lawyers should not involve themselves in politico-civil advocacy. They must. But they must not do so through a regulator. Lawyers must empower themselves and organise themselves in any way they want to exercise their constitutionally protected rights to speech and association, without conflating the roles of the regulator in the process. My solution therefore, proposes to split the current Law Association of Zambia, into two bodies: a regulatory body (to be called the Law Society of Zambia) and a politico-civil fraternal association to be called the Law Association of Zambia. The LSZ will have lawyers self-regulating themselves and concentrating on standards, training, admission, licencing, and discipline. The new LAZ on the other hand can be an all-encompassing voluntary organisation that can participate in society as a civil society organisation. My proposal here is very different from what is being proposed by Hon. Kelvin Sampa who rather than splitting regulation from fraternity, wants to create more associations like LAZ that combine both regulation and fraternity. What is broken with LAZ cannot be fixed by created more LAZs, but by splitting the regulatory function from the fraternal politico-civil advocacy function.
Fifth, the regulator of lawyers must not be concentrated in Lusaka alone, but must focus on the whole Zambia. This principle is very connected to the second principle above. Clearly, out of the 1,000 licensed legal practitioners in Zambia, almost all of them are concentrated in Lusaka. The regulator must make it easier for lawyers to practice outside of Lusaka. Milenge can do with a lawyer. Apart from economic incentives, there should be practical incentives in place to attract lawyers to the Zambian interior. How can this be done? The regulator should do away with the rule that forbids new bar calls from starting their own law firms. The requirement that new calls should work in a firm for five years before they can start their own firm makes no sense at all. This requirement perpetuates the centralism of Lusaka. Obviously, most firms are in Lusaka and so the new bar calls would stay in Lusaka and by the time it is five years, they would have buried their roots deeply into Lusaka making it difficult for young lawyers to spread themselves around Zambia.
Sixth, the regulator of lawyers must explore a formal regulation of paralegals. Almost all other professions have some regulated para-professionals: accounting, medicine, surveying, etc. have their own para-professionals. Zambia does not have paralegals as a recognised and regulated body of professionals. The future regulator must explore how paralegals can be regulated. A regulated paralegal regime may help with access to justice issues.
Zambia’s legal future is very bright and I hope this article will contribute to the debate of how best to regulate an important profession.
Suggested Citation: Munshya, E. (2017). Regulating Lawyers In Zambia: principles and practice. Elias Munshya Blog. (www.eliasmunshya.org) (April 10, 2017)