CLA News / The Independence Of The Legal Profession In Times Of Covid And The Rule Of Law
I was honoured to be invited to take part in a Webinar organised by the Southern Africa Development Corporation Lawyers Association to show solidarity with some of the jurisdictions in SADC LA which had become under great pressure during the Covid emergency. In particular, those participating were asked to show solidarity with the lawyers in Zimbabwe and Lesotho and Eswatini.
The key note address was from retired Judge Zak Yacoob, an extremely distinguished former constitutional Judge in South Africa and whose company I had enjoyed in Botswana (at a previous SADC LA conference) and also in Livingstone at a Law Association of Zambia conference.
Zak spoke with his customary directness about the need for lawyers also to abide by law, to adhere to professional obligations and to recognise and act in accordance with their duty to the Court while at the same time absolutely recognising the need for lawyers to remain independent. He referenced how it was vital that the legal profession and the judiciary maintained their independence, that being a fundamental pillar of the rule of law in a democratic society.
The Chief Executive of the Pan African Lawyers Union (PALU), Mr Donald Deya, also spoke passionately about the need for lawyers to be both independent and left to regulate independently. He decried the creeping hand of government in terms of legal professional regulation and interfering with lawyers going about their practice.
Ms Blessing Gorejena of the Zimbabwe Human Rights Institute gave examples of lawyers being harassed, intimidated both directly and indirectly, and on some occasions of being arrested or barred from representing clients. This painted a sombre picture of the position of some instances in Zimbabwe and we were privileged to hear from Mr Thandazani Masiye-Moyo, President of the Law Society of Zimbabwe, who gave a report on the challenges his members faced including lawyers being arrested, held without charge and being denied legal representation.
During the webinar, reference was paid in particular to female lawyers and how they seemed to attract more challenges and I was pleased to note that of two mentioned, namely Fatma Karume and Beatrice Mtetwa, that the CLA had already issued statements in support of the difficulties those ladies had experienced.
I was asked to give an international perspective from my position as President of the CLA and mentioned that the independence of lawyers was something about which we needed to vigilant and how it was so important to a modern democratic society seeking inward investment and stability that the rule of law was maintained. I mentioned the Latimer House Principles pointing out that judicial review of government decisions was essential to ensure that the Executive and other organs of the state were held to account for decisions made and that the legal professional remaining independent was necessary to ensure that the rule of law could be upheld and would prevail.
I said that it was not just in SADC region jurisdictions that lawyers were challenged, mentioning that in the UK following the prorogation hearing in the Supreme Court, lawyers had been called “enemies of the people” and that only the day before at his party conference speech Prime Minister Boris Johnson had referred to “lefty lawyers” in a disparaging and dismissive way. Of course, these distasteful comments were as nothing compared to arrests, intimidation and mistreatment but were indicative of a mindset which found independent lawyers something of an inconvenience to those in authority.
I encouraged lawyers to be attentive to what Judge Yacoob had said in his remarks: namely that lawyers too were not above the law in the same way as politicians and presidents were not above the law and that it behoved us all to act in accordance with professional conduct and our duty to the Court and not just on the instructions of clients.
I said I was concerned about regulatory measures being introduced in some jurisdictions and was particularly concerned about the lawyers in Estwatini. Proposed legislation appointing a Legal Services Board with appointments made by the Minister of Justice and only one place available for a Law Society legal representative did not bode well for maintaining an independent profession. Instead it was designed to create a compliant profession. I was pleased to show solidarity with the lawyers in Zimbabwe and Estwatini and Lesotho and was pleased to support the importance of the independence of the legal profession.
This was a well organised and important event to which congratulations are due to SADC LA and their excellent CEO Stanley Nyamanhindi who was a powerful contributor to the Canadian sub hub event the following day on regulating the profession in a pandemic.