Tag Archives: Law Association of Zambia

Does the Law Association of Zambia Act (CAP 31) Over-Politicize Zambia’s Legal Profession?

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)

September 2016 ©MBKoeth

Elias Munshya, BA, LLB, MA, MA, LLM, MBA, MDIV (of the Alberta Bar) ©MBKoeth

Splitting Regulation from Fraternity: Reforming the Law Association of Zambia

By E. Munshya LLM, MBA, MDIV 

The functions and objects of the Law Association of Zambia (LAZ) are very important in our system of law, government and politics. LAZ’s mandate is primarily derived from two statutes: The Law Association of Zambia Act and the Legal Practitioners Act. Under the LAZ Act, LAZ’s objectives can be broadly divided into the following:

  1. lawyer regulation, training and development;
  2. socio-lego-political engagement; and
  3. fraternal fellowship for lawyers.

LAZ’s regulatory objects are principally carried out through both the Legal Practitioners Committee and the Disciplinary Committee. The socio-political engagement is fulfilled by LAZ’s active socio-political engagement and lobbying on matters of legal importance. LAZ has been active in the advocacy for a new constitution and through this statutory mandate it was a very worthy and influential member of both the OASIS Forum and the Grand Coalition, two important lobby groups that advocated for a new constitution in Zambia. As a fraternal organisation for lawyers, LAZ advocates for camaraderie, self-care and represents lawyer interests before the government and the society. From 1973 to the present, LAZ has played a huge role not only in the legal development, but also in the socio-political engagement and thought. Particularly, from the advent of plural politics in 1990, LAZ has been at the forefront advocating for democratic change and reform. These are positively praiseworthy achievements.

In spite of all these obvious strengths, however, LAZ as it currently stands represents an untenable model that needs urgent reform. The model under which LAZ currently operates is no longer suitable for a bourgeoning democracy like ours. In all fairness, there is a need to reform it to make it more responsive to the needs of the public while at the same time maintaining both public and governmental confidence in an association that regulates legal practitioners. Particular areas of concern with the current LAZ legislative regime concerns its seemingly conflicting roles as a legal/lawyer regulator while at the same time serving as a fraternal organisation for the same lawyers. LAZ needs to be reformed by splitting the regulatory function (Legal Practitioners, Disciplinary, Education committees) from the fraternal and socio-political function (LAZ-at-large).

Elias Munshya New

Elias Munshya (of the Alberta Bar)

Recent concerns over LAZ’s opinions and advisories are quite justifiable particularly when LAZ advisories do not represent views held by a good number of its members. Some positions taken by LAZ have even been held to be wrong by the Supreme Court of Zambia. This is not a good position to be in for a regulator of lawyers. The regulator of lawyers in Zambia should appear to be above board and should only go to court when the regulatory side of legal practitioners is at stake. The regulator should not go to court to argue about how much tax a person owes or does not owe. Recently, LAZ president Linda Kasonde issued some statements concerning Mr. Fred M’membe’s The Post tax problems with the Zambia Revenue Authority. LAZ members are reluctant to come out in the open to provide alternative understanding of issues to their organisation because LAZ is both their fraternal organisation and their regulator at the same time. The result is that LAZ members might feel muzzled and the LAZ senior leaders might get a pass by issuing statements under the cover of statutory protection even when their members believe otherwise. However, once regulatory functions are split from the fraternal functions, the regulatory side of LAZ can be run by an independent body that will concentrate on training, disciplining and regulating lawyers without having the pressure of the burdens and expectations that come from socio-political engagement (such as tax issues). The fraternal side of LAZ can continue and can encourage its members to participate, to criticize and to reach some consensus as the association participates in the socio-political destiny of the country.

This proposal is not by any means unusual. Currently, the Legal Practitioners Committee (LPC) is an influential committee within LAZ, tasked with lawyer regulation. All that is needed in my proposal is to delink this committee from the main LAZ body and give it statutory powers of its own to regulate and discipline lawyers away from the glare of socio-political interference. If the LPC were to be delinked, it would have its own management and it could comprise of members appointed or elected by legal practitioners themselves.

Once the LPC is delinked, LAZ can then concentrate its efforts into being the fraternal body that freely engages in the world of ideas. Such a new LAZ can criticise and be criticized without practitioners fearing for their lives. Additionally, such a LAZ can go to court and lobby for socio-political positions without associating those positions to the regulators.

The model I have proposed above seems to comport with modern legal arrangements in England and Wales and other commonwealth jurisdictions. Very rarely do regulators make news commenting on socio-political issues. This role is left to other fraternal legal organisations and associations of lawyers as the regulators concentrate on the actual regulation of lawyers. In Zambia’s sister jurisdictions such as Canada, as an example, lawyers are regulated by the respective provincial law societies while the Canadian Bar Association (CBA) remains a fraternal organisation of lawyers based on mutual and voluntary membership. In the United States, most jurisdictions have a similar arrangement. The American Bar Association (ABA) is a fraternal organisation whereas each state has its own bar regulators. Both the CBA for Canada and ABA for the USA freely comment on socio-political issues, lobby on behalf of lawyers, present and recommend training for lawyers, and provide a fellowship of some kind for lawyers. In South Africa lawyers also have a voluntary fraternal organisation while the regulatory side is handled by a different body depending on the province.

Such arrangements would be much more suitable for Zambia as well. In our democracy, it becomes necessary to split regulatory and fraternity functions of the Law Association of Zambia.

_________________________________________________________________

Suggested Citation: Munshya, E. (2016). Splitting Regulation from Fraternity: Reforming the Law Association of Zambia. Elias Munshya Blog. (www.eliasmunshya.org) June 30, 2016