THE legal fratenity is one of the most ill-understood professions in the world from an ordinary citizen's perspective. People often have misconceptions about how legal processes take place and how lawyers are regulated. At the helm of the profession is the Law Society of Zimbabwe (LSZ), which has hitherto remained in relative obscurity, but whose principal duty is to regulate the conduct of lawyers.
As Chief Justice Luke Malaba officially opened the 2020 legal year on Monday, Zimbabwe Independent Chief Reporter Andrew Kunambura (AK) caught up with current LSZ president Thandaza Masiye-Moyo (TMM) to discuss various issues relating to their operations. Below are the excerpts:
AK: Can you briefly explain what the Law Society of Zimbabwe is and how one becomes a member?
TMM: The Law Society of Zimbabwe is a grouping of legal practitioners of this country and for one to be a member of this society, one has to be admitted as legal practitioner and immediately thereafter if they do not renounce their membership within three months, they automatically become members of the society.
AK: How did the Law Society come about and what are its objectives?
TMM: The Law Society is created by an Act of Parliament, so it is a statutory body which is governed by the Legal Practitioners Act and at the core of it all is the establishment of a body which is self-regulatory as a professional body.
We have power to discipline our members. We represent our members, their views and their interests and any other various functionaries that are contained in the Act.
We are also given the power and mandate to promote certain legislative changes if we feel that there is that desire to have some legislative changes.
We also have the mandate to oppose legislation which we think is not in the interest of the citizens. We are also there to promote the independence of the judiciary as a whole.
AK: Can you tell us what the Law Society has done to instill and enforce discipline among its members over the past year and how many disciplinary cases you have handled?
TMM: This is an important question really because it speaks to the trust which members of the public should have in the legal practitioners.
We have strengthened and we continue to strengthen our disciplinary arm of the Law Society which is the disciplinary committee.
The challenge that we face is that the current legislative framework is a 1981 framework where we have three members of council who sit as the disciplinary committee.
Then, they were regulating about 250 practitioners. Now they were regulating over 3 000. So what we were doing now is to put measures in place so that we expand our committee into disciplinary committees so that we are able to speedily deal with such matters.
AK: In terms of statistics, how has the Law Society fared in this regard?
TMM: This increase in the number of legal practitioners means we are a little bit behind insofar as enforcing discipline is concerned.
The tribunal that sits to hear these cases is the same as that which was there in 1980 in terms of numbers.
I can say that, in 2018, we had eight de-registrations and in 2019 we had nine de-registrations. But in 2019, we had a decline in the number of complaints as opposed to what we had in 2018.
In 2018, we had over 500 and in 2019 we had slightly under 500. It means we are effectively regulating and that's why we have these de-registrations.
The majority of cases relate to abuse of trust funds and failure to execute the mandate as given by the client.
AK: Coming to that issue of judicial independence, from a legal practitioner's perspective, do you think it is possible to achieve such and how?
TMM: Key to this principle is that a lawyer must be an independent person in the performance of their duties.
They have to be independent in the sense that they answer only to the interests of their clients and their duty is to be faithful to the law.
AK: What challenges have you faced as the Law Society over the years?
TMM: The legal profession is growing in this country. We have risen from 250 lawyers at independence to about 3 000 currently.
So the legislative framework that we operate under is still the same legislative framework that we had in 1981 and we have now commenced a process where we have to amend the Legal Practitioners Act so that where it is found lacking we deal with those aspects, particularly where it deals with our core business of regulation.
Like any other professions, we have experienced bad apples in our profession, but I must say that these are not being allowed to tarnish the image of the profession as a whole. We have put in place strong measures towards regulation.
We have also over the past year experienced discord in terms of political polarisation in this country and we have had to stand on the side of human rights and that is why sometimes you may have seen statements that could have reached you where we would condemn certain excesses by the executive in terms of human rights abuses.
So we will continue doing so.
AK: Still on that political polarisation issue, moralistic questions have been asked about the conduct of some lawyers who decide, as part of their extra-curricular activities, to venture into active politics and in the end some of them are found representing clients from other parties who would have been implicated in criminal activities, particularly corruption. How would you respond to that?
TMM: I think what you are raising is a question of conflict of interest. A lawyer has a duty to represent anyone without fear or favour.
This comes from the principle that everyone has a right to legal representation of their own choice and I must say it is all about the practice of law and that is what sets aside all other considerations, be they political or tribal.
As a lawyer, you set those aside but if a legal practitioner gets into a situation where they think they are ethically compromised, in the sense that, for instance they have so much revulsion for a certain group of persons that they are unable to represent a person coming from that group, what they must do is to decline to act for that particular person.
If we say this one belongs to this group and therefore they should be represented, what it means is that they will end up with no representation and on that note we would have violated the constitution because everyone has the right to representation.
AK: There are questions regarding the training institutions recognised by the Law Society. Which training institutions do you recognise?
TMM: Let me state that the Law Society is a stakeholder in legal education and does not regulate legal education.
It is regulated by Zimche [Zimbabwe Council for Higher Education]. Traditionally we have been taking the bulk of graduates and have from time to time been consulted by universities when they want to introduce law studies and we give our opinions.
So it is not for us to decide which university to recognise or not to recognise. We can only formulate an opinion and that is how far we can go. We don't have the power to recognise.
AK: What is the Law Society's position on the ongoing issue of constitutional amendments?
TMM: It is our firmly held belief that the proposed amendments to the constitution are in nature very retrogressive except for one which has to do with gender equality.
This constitution is hardly seven years old and the constitution is the foundation of values, principles and ethos of society, where the society says we want to have this document as a bedrock to underpin our behaviour and how we relate to each other.
It is fundamental. The assumption when we made it was that it was going to serve us and generations to come except for certain circumstances.
We are therefore saying that there has not been any justification to depart from that principle.
What is it that has been very exceptional to warrant interference with that constitution as it stands now? We are saying we cannot find anything as it stands now. We derive this mandate from the law.
AK: Finally, at the official opening of the 2020 judicial year on Monday this week, the chief justice said court proceedings will, starting this year, be broadcast live. What do you make of this development in terms of improving the administration of justice?
TMM: We welcome this development. I think the message really that is coming out is that of transparency.
For people to have confidence in the system, they must know how the system works.
This presents an opportunity where even those who will be at home have the opportunity to understand how the system works.