By Elias Munshya, LLM, MBA, MDIV. (of the Alberta Bar)
In April 2018, Zambia Institute of Advanced Legal Education (ZIALE) will unleash over 300 new lawyers in Zambia which will bring the total number of Zambian legal practitioners to 1,400. Remarkably, about half of all these lawyers have qualified in the last 5 years. A bar which was just 700 four years ago will now boast twice that number, and growing in 2018. Now that ZIALE is doing its part, our focus should shift to the Law Association of Zambia (LAZ). It appears that the regulator is totally unprepared to make sense of this huge number of legal practitioners. I must stress here that the problem with LAZ, has very little to do with the quality of its council or its leaders. It has everything to do with the legal framework under which LAZ operates. LAZ in its present form lacks the institutional framework and intellectual imagination to regulate lawyers of Zambia’s future. It is time for reform. Failure to which, the institutional and legal framework will hold back the progress that Zambia seeks to make in terms of access to justice for all Zambians.
As I have stated in previous articles, the Law Association of Zambia Act of 1973 seems to have been a compromise between the Kenneth Kaunda regime and senior black lawyers (less than a hundred of them) who agreed to let Kaunda become a dictator on condition that their association gets broader institutional powers to comment on Zambian politics and provide guidance on the “rule of law”. LAZ became a defacto opposition party in a system where political pluralism was banned. The compromise was a LAZ Act (CAP 31) whose emphasis was more on socio-political advocacy and not much on professional regulation. Almost 50 years after the 1973 Act, there is need to fundamentally revisit the LAZ Act so as to split lawyer regulation from the socio-political activism role.
After the 1991 advent of political pluralism in Zambia, there is no reason why the regulator of lawyers in Zambia must also be playing such a prominent role in socio-political activism such as commentary on politics, cholera, and conservation. When compared to other legal profession regulators in the SADC region and the common law tradition, the Zambian regulator is the most politically outspoken, a feature that unduly affects its ability to properly regulate lawyers. My proposal is for the Zambian parliament to split the current Law Association of Zambia Act (CAP 31) into two – form a regulatory body to be called the Law Society of Zambia (the LSZ) and then form a new voluntary association to be called the Law Association of Zambia (LAZ), with possibiliy of having several other voluntary associations based upon lawyers’ voluntary mutual interests. The LSZ will concern itself with training, regulation, licensing, continuous education, and disciplining of lawyers. The LAZ will become a voluntary fraternal organization that can engage in fellowship, advocacy, continuous training, fraternity, and socio-political advocacy.
Considering the proposal above, I must now turn to some tangible areas that need immediate change. LAZ is unprepared because it is too structured around Lusaka. In fact, we can safely call it the Law Association of Lusaka. If this organization is to satisfy its regulatory mandate, it must begin thinking beyond Lusaka. It is not that this is difficult to implement. LAZ can make tangible steps tomorrow, or even next month when it has its council to begin thinking outside the box, the box being Lusaka.
LAZ has a rule that only lawyers with 5 years standing at the bar can open new firms. Since 80% of current law firms are in Lusaka (the rest are along the line of rail), almost all of the new lawyers must find an associate position within Lusaka. By the time these lawyers have done their five years at the bar, it is not rocket science for anyone to suggest where they will want to settle and open their firms – Lusaka. This will put pressure on the business in Lusaka and further deprive other provinces of law firms and lawyers. This 5-year rule must be abolished. It serves no tangible purpose in a modern regulatory framework. Many of the 300 new lawyers to be minted next month have established lives out of Lusaka, why should they relocate to Lusaka to compete for the fewer associate positions? Some of these associates would rather be in Chama or Katete and serve their fellow citizens from these areas.
The 5-year rule was established apparently to have lawyers get adequate experience before they can start firms. But at whose and what expense? In the 70s and 80s and 90s, new lawyers were mostly in their twenties. I would agree that at that age, they were pretty young to run a business, and particularly a more complex business of law. But this has greatly changed in the year 2000 and beyond. Most people in law school are what we would call “matures”. They have run things, businesses, departments, budgets, and are taking on the law as a second or third career. These experienced matures can run law offices without difficulties. The one size fits all approach cannot work within a regulatory framework of the future. LAZ must introduce a more case by case evaluation of who can start a firm. If my mbuya Dickson Jere wants to open a firm in Chipata, right at Mutenguleni (to serve Abena Chipata), he should not be prevented from doing. Doesn’t all the experience he has had running huge departments count? New lawyers with the requisite experience must be allowed to start firms, particularly those willing to take the law to areas that the elitist LAZ Act (1973) would not want to go!
The next tangible thing LAZ can do is to look at its fee structure. Legal fees in Zambia are mandated by law. Lawyers who charge outside the mandated fees can potentially face disciplinary action. It is professional misconduct to charge less than the mandated fees. When I tried to interpret the current regulated fees, I was shocked to learn that legal fees in Zambia are comparable to Alberta a jurisdiction far richer than Zambia. Legal services in Zambia as priced using the 1973 Act model are simply out of reach for many Zambians. LAZ must scrap those fee structures, encourage the establishment of firms beyond Lusaka and infuse new life into a profession that is likely to be held back by the shackles of the 1973 Act. The fee structure is no longer tenable and LAZ must introduce a more flexible competitive framework, particularly for those lawyers who choose to practice outside Lusaka. Those serving areas outside Lusaka must be allowed to charge less.
Perhaps the third tangible thing that LAZ must do, is to stop the running socio-political commentary on all constitutional issues. Having belabored this point above. I must refrain from further comment, a character the regulator needs next time it is tempted to comment on cholera, fish and Mukula trees.
Elias Munshya is a Zambian born international lawyer with law degrees from England (LLB), Illinois (LLM), and Wales (MBA-Law). He is a civil trial lawyer in Calgary, Alberta, Canada and has written extensively on Zambia’s constitutional and administrative law at eliasmunshya.org blog.