15 August 2017

Southern Africa: SADC Lawyers Stand Up for Justice

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Lawyers and their organisations continue in the forefront of Africa's democratic struggles - that much was clear from this year's conference of the SADC Lawyers Association, held in Gaborone, Botswana.

When outgoing president, James Banda, opened the conference last weekend he said he was saddened to report two recent cases in which prominent lawyers and their organisations had come under fire, with a resulting threat to the rule of law.

When I spoke to him later he said he had been referring to the problems experienced this year in Uganda and in Zambia.

In Uganda the president of the Tanganyika Law Society, Tundu Lissu, was arrested last month on his way to the airport. He had been due to attend a meeting of the East African Law Society. The regional law associations including the SADC Lawyers' Association said at the time that they would arrange to observe Lissu's expected trial as well as other court action on his behalf to vindicate his rights under local and international law.

Banda's other reference was to the problems in his own country, Zambia, where, earlier this year cadres, suspected to be from the ruling Patriotic Front, attacked the offices of the Law Association of Zambia and also threatened the association's president, Linda Kasonde.

During a later address to the conference a prominent member of the High Court in Botswana, Oagile Dingake, paid tribute to the willingness of many members of the legal profession to stand up for justice even when their protests were aimed at the courts or the administration of justice. It was very often lawyers who brought cases to show up injustice and challenge the courts to pronounce on rights, he said.

He mentioned the protests of lawyers in Swaziland who, in the recent past, and reacting to unjust decisions, had taken to the streets 'in their flowing black robes' and had boycotted the courts. Their actions showed 'how they were willing to stand up and fight for justice'.

However, he challenged them to go further in their thinking and become aware of and active in the fight for socio-economic rights as well, a call echoed by retired South African Constitutional Court judge, Zak Yacoob.

But it was not all high-minded activism for justice, and another strong theme emerging from the conference was how to deal with the growing agitation of some lawyers in the SADC region who feel that local legal professionals are not getting 'enough of the cake' created by foreign investors, because these investors used their own advisers sourced from major international law firms and left just 'crumbs' for their local counterparts.

For an observer not directly affected by the situation this discussion, repeated references to the size of the 'slices of cake' that lawyers felt they should be able to enjoy came as a stark contrast to the earlier discussion which had been so focused on questions of justice - although many of the lawyers involved in the later debate obviously regarded this as an issue of justice for themselves.

Debate swirled through a series of suggestions such as the formation of far larger local law firms so as to allow individuals within such a firm to specialise in the various skills required by international investors.

One speaker urged that action be taken to 'drop internal boundaries', so that lawyers from all countries in the region would be free to appear in each other's courts. He complained that while South African lawyers were allowed to be heard, after admission, in the courts of a number of other countries in the region, there was no provision for reciprocity and regional lawyers did not appear in South African courts.

Others proposed various forms of government-imposed protectionism for local lawyers, prompting concern from some panellists who said this would be 'suicidal' since the potential investors would simply move their money to other countries. In response, there was discussion about whether the investment promised by via major international contracts actually benefited the local people, the implication being that perhaps it would not be a great loss if these investors were put off and left, taking their money with them.

When some speakers mentioned the greater experience and qualifications that lawyers in international law firms were said to bring with them, others retorted that lawyers in the region were just as good, some even having been educated at the same law schools.

South Africa's legislation making it mandatory for contracts over a certain value to have a strong component of black firms and people was discussed - with some in the audiences sounding quite envious of the potential benefits. So was the idea that regional governments should build into contracts a condition that there be a certain local content for law firms.

One panellist, from the International Senior Lawyers Project, said that legal experts, provided through her organisation to help governments in developing countries negotiate complex agreements with international investors, had as a priority that they would work with local lawyers wherever possible, so as to 'build capacity' and share skills.

It is a question that has taxed members of the SADC Lawyers' Association in previous conferences and is clearly likely to be around for some time. At last year's gathering however there was a session on how local professionals could network with the major international law firms while the question this year seemed to be whether networking with other firms in the region, or even forming groups to cross regional borders, might not be a better starting point.

As before, there was a session on women in the law. Though the session was well attended - with even some men auditing the group discussion - the conference plenary discussions were light on women speakers, panellists and session chairs.

One of the speakers at this session however was none other than the Law Association of Zambia president, Linda Kasonde, who has come under such pressure in her own country after she and her organisation were recently attacked. This was something of an inspiration and I did wonder whether it would not have been a good idea for her to have been a speaker during the plenary sessions, when all the delegates could have benefitted from her views and experience, rather than slotting her input into a 'women'-themed breakaway session.

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