Foreign lawyers: Test for EA protocol

Arusha. A protocol allowing the free movement of professionals in East Africa will be put to test with the planned restriction of foreign lawyers from practising in Tanzania without being licensed at the bar.

Legal experts and consultants are divided over the move announced last week by the Tanganyika Law Society (TLS), which warned expatriate lawyers with no valid licences, but operating in the country as consultants to comply or stop working.

TLS president Charles Rwechungura warned in a directive that law firms, companies and organisations that hired the services of legal experts without complying would also face the music.

And reacting to the directive, some legal stakeholders agreed with the need to regularise the sector. However, they were quick to point out that the decision may not apply to legal experts working as consultants with various organisations or private firms, but are not practising as advocates.

There are also fears that with consultancy being amorphous, covering a host of professional services and closely linked with the corporate world, the intended measure may contradict the EAC Common Market Protocol, which encourages cross-border movement of professionals.

Dr Eliamani Laltaika, a senior law lecturer with the Nelson Mandela University in Arusha confirmed the presence of foreign lawyers, who have found themselves into the country against the TLS regulations, and working as consultants.

He said since many of them were from the East African Community (EAC) partner states, TLS, the premier bar association in the country, was right, given the need to put in place clear arrangements to handle the movement of legal professionals in the bloc.

However, the outspoken legal expert believes it would be difficult to implement the directive and asked if there was a clear border line between practising law and legal consultancy and whether the prohibition was strictly on appearing in courts.

“There are also foreign company secretaries, who are lawyers registered with their respective bars. In addition, there are consultants in civil society organisations who are also lawyers but restricted to activities related to their organisations”, he told The Citizen when reached for comment.

Dr Eliamani, who is also an activist for the indigenous people and pastoralist communities, cautioned TLS and other concerned authorities to be careful with the new order and use it “sparingly to avoid contravening the EAC Common Market Protocol”.

Caroline Mugalla, the executive secretary of the East African Trade Union Confederation (EATUC), another regional organisation based in Arusha, wondered why it has taken so long for the country’s bar association to enforce the law.

“I am not sure if any person can practise in Tanzania when they are not registered or licensed. May be there is a problem with enforcement of law practice here,” she said in an interview.

She said she was not sure if the directive covered legal experts from outside the country working as company secretaries with local institutions or those hired as advocates by law firms from the neighbouring states, which have established themselves in Tanzania.

“Does a lawyer need a work permit?” she asked.

However, she elaborated that from the workers’ perspective, it was the responsibility of the employer or the law firms operating in the country to take the burden of ensuring that the employee from outside “has the right papers.”

But Ms Mugalla, a Kenya national, said TLS may have taken up the issue in a bid to address unfair competition between locals and lawyers from outside the country.

There are concerns over the constrained job market for lawyers. The other issue is competition for the few attractive or well-paying cases. She said: “If they are equally qualified, it goes back to the issue of skills, availability and competence.”

According to her, under the EAC Common Market Protocol, a regional pact which was enforced in July 2010, legal services do not fall under the professional services that are recognised by Tanzania within the framework of free movement of labour.

This is not the case with other partner states in the bloc – Uganda, Kenya, Burundi and Rwanda.

William Kivuyo, a practising advocate supported the move by TLS saying the law prohibits any person who is not admitted to the bar and who does not hold a valid practising certificate to practise in Tanzania.

The certificate is issued by the Registrar of the High Court of Tanzania and an advocate has to take an oath before the Chief Justice.

Mr Kivuyo,currently working with the Arusha-based Bill & Williams Advocates, allayed fears on the directive, saying it is focused on regulating the activities of practising advocates, and that it was not targeting the entire legal fraternity, like company secretaries.

An Arusha hotelier, Moses Onunga said the announcement made by TLS urging the concerned lawyers to comply was timely and said there should be no complaints about that.

“It is unlawful to practise without being registered, whether you are a local or foreigner. There is always a procedure to be followed. If you don’t follow the rules and regulations,” he said.

However, he challenged the employers - law firms and corporate bodies - hiring lawyers from outside the country, saying they have to ensure their papers were in good order.

Simon Mapolu, a consultant based in Arusha, said there was no proper regulation of the legal profession in the East African region, a situaiton which, he said, has led to a dearth of statistics on the actual number of existing legal experts, including those operating under the umbrella of consultants.

He noted that there were many legal experts from neighbouring countries in Arusha, especially from Kenya and Uganda, including former employees of the EAC, who retired to establish legal firms.