Mussa Kwikima (Lawyer) in his Office- Tabora.
From Mussa Kwikima (Lawyer)- Tabora.
TOWARDS A TANZANIA BAR ASSOCIATION
“American Bar
Association”.
A voluntary
national organization of lawyers. Among
other things ,it participates in law reform ,law –school accreditation and
continuing legal education in an effort to improve legal services and the
administration of justice.
BLACKS LAW DICTIONARY
9th Edition p. 97
“Bar Council”
“(The
General Council of the Bar of England
and Wales), the governing body of barristers both practicing
and non- practicing .The Bar
Council issues a code of conduct
to which all barristers are obliged to adhere. It regulates the activities of
all barrister ,maintains standards within the Bar and considers complaints
against barristers.”
OXFORD DICTIONARY OF LAW
6th edition p.50
Since its
inception in 1954 ,the Tanganyika Law Society has been functioning as a creature and subject of the Advocates
Act ,cap 341 RE 2002 and The Tanganyika Law
Society Act cap.307 RE 2002 .it cannot therefore be said to be either “a
voluntary national organization of lawyers”
or the governing body of advocates in Tanzania.
The statutes
are a colonial hangover enacted to ensure that legal practitioners imported
from India, Pakistan ,England and other far –flung countries of the then
British empire worked firmly under the thumb of the colonial regime in
Tanganyika .The same was the situation in Zanzibar although in the latter case,
the Sultan regime was curbed in it activities by the colonial judicial system .
Fifty six
years after independence and fifty three
after the union of Tanganyika and Zanzibar ,the society is still virtually the
same as the colonialists left it save
that the membership has swelled from a handful of praditioners ,to the present
5000plus over whelmingkly indigenous
practioners .Among the latter - day practitioners include the likes of Harrison Mwakyembe ,Tundu Lisu , Twaha Taslima
, Mabere Marando to name just a few.
As stated in
the quotation above ,the need for a governing body for advocates in Tanzania is catered for by office of the chief justice ,the Attorney
General and the Advocate Committee. There is no Bar Council as such ,statutoryr
or voluntary .The lacuna has led to recent ulburst by the minister currently
responsible for legal affairs .
We have had
lately the outburst from the minister carried in roaring headlines by the local
dailies(in which minister)is reported threaten to disband the Tanganyika Law Society
.So blared the papers for the whole week before the staging of the election of
the Tanganyika Law Society president on 18.3.2017.The ministered call appears
to have been necessitated by the order of
the head of state that politicians
should not vie for presidency of the society. Otherwise no one would be given the judgeship from among society members
.
Suffice it
to say that if the banning was a threat it was ill-conceived and unfortunate as
neither the minister nor the President
have power to repeal the statute creating the society .At any rate ,the minister , himself a member of it, would
lose his status as a licensed legal praditioner.The law forbids non- TLS
members to practice law in Tanganyika .The right to practice law in Tanganyika is conferred by cap 341.E 2002 is clawed back
by cap 307 which proscribes legal practice by non-
TLS members .The honorable minister would have to rely for his living on his political post as minister of
legal and constitutional Affairs ,a post he secured by engaging in politic
through his political party CCM.
Un fortunately
the honorable minister is not the only lawyer licensed to practice law in the country.
there are many politicians who rendered professional legal service to TANU and
CCM , among them being Mahmoud Rattansey,Alnoor Kassam, Augustine Ramadhani,Arcado Ntagazwa just to name a few
.In deed an advocate for CCM was
recently appointed judge of the High
Court.
The irony is
that the outburst by the learned
minister is couched in apparently threatening terms which would happily ,pave the way for a non statutory bar association be
launched should the “threat” be carried
out .The
replacement
would certainly be 9non –statutory institution operating free from the clutches
of the state executive.
That would
be a very timely and welcome scenario
were it to happen .The fact is, it can ,although there are several impediments for its occurrence, namely:
a) That TLS
being a body statutorily sanctioned under cap 307 RE 2002 AND CAP 341 re 2002
no minister or even the President can wish it away arbitrarily .Only Parliament
can repeal the statutes permitting legal practice.
b) The alleged
“threat” would have the ironical effect
of paving the way for legal practitioners
to have their own trade union in the form
of a true Bar Association. Were that to happen ,the current tendency to
issue edicts arbitrarily would be curbed.
c) Fortunately
it would also cause the Lacuna to b e filled by a statutory BAR COUNCIL to regulate and oversee legal practice
as do the medical board for doctors, the accountants and auditors board for accountants ,the surveyors board
,the engineers board just and several other institutions which register supervise and discipline
professionals. This would put an end to TLS self censorship which enables unscrupulous lawyers to engage
in scams like EPA ,Tegeta Escrow and IPTL without being called upon to account.
The much advocated for TANZANIA BAR
ASOCIATION would be the dream of the upright legal practitioners to serve as :-
i.
The trade union for advocates.
ii.
The vibrant and tireless canvasser for human and citizen
rights and as an NGO capable of speaking
out against arrant abuses and maladministration.
iii.
Institution born of private
citizens effort to rally for their rights.
iv.
A legitimate and lawful member of
the international community capable of lawfully joining hands with foreign
institutions of the same UK.
v.
Could team up with the Zanzibar Law society to strengthen the cherished ideal of unity within the united Republic of
Tanzania .
The envisaged
independent Tanzania could as well make
profound impact on matters regarding:
a)
The process of enactment of
statutes .
b) The
selection and appointment of judicial personell especially judges.
c) The
sponsoring of candidates for state and municipal election .
d) Remaining
state functionaries that association is
here to see it to that human and citizen rights are manifestly observed and respected.
There could
also be a council of the law faculties of the universities in Tanzania in
collaboration with the Tanzania Law School and other legal institution of
recognized legal powers. In addition ,what are now known as “chapters of the
Tanganyika Law Society would best serve
as statutory Law Societies for the
regions or zones within areas under the geographical jurisdiction of High Court
Registries.
At the end
of his outburst the honorable minister opined that it was not proper for a TLS
president to indulge in Politics. Surely the learned minister could not be
unaware of the role lawyersplay in politics .He must have heard of the likes of
Karsandasli Mot Gandhi,Jawahilal Nehru,Walter
Sisulu,Oliver Tambo,Nelson
Mandela, Barack and Mochele
Obama, Tony and Mrs Blair, Muhamad Ali
Jinnah ,Abubakar Mayanja kwaw – Swanzy
to name a few- among many lawyer
politicians of international repute.
It is surprising
to hear that a lawyer formerly involved in the media trade could fail to
acknowledge and admire the relevance of
legally trained legislators and politicians who would naturally fit into the
task of legislating. Needless to say the lawyer would be the appropriate cadre
for membership of the realm of politics.
The author
is a pioneer aluminus of Dar es salaam
University holding a first degree in Law from the University of London. He
worked for the Government of the United Republic of Tanzania from 1.7.1964 on
Resident Magistrate.
He was Assistant Attorney General in 1967-1968 before being
appointed High Court Registrar in 1970
.He has twice been sworn as Acting High Court Judge in 1970 and 1983.
Since
1.7.1974 he has been in private law practice as an advocate at Tabora. His
telephone numbers are 0767- 555 952 and
0655 471 955.
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