Tanganyika Law Society President, Boniface Mwabukusi. PHOTO | COURTESY
By Boniface Mwabukusi
Amne Suedi’s recent column in this paper, on whether Tanzania’s advocates can survive the mega-project era, raises a fair question about local content in legal services and then answers it unfairly. Her diagnosis is that bar leadership has, since 2017, poured its energy into confrontation with government over constitutional and political questions, and that this has come at the cost of enforcing the local-content rules that would put briefs and fees in Tanzanian lawyers’ hands.
A bar association, she argues, cannot be both government’s sharpest critic and its most persuasive partner in getting those rules enforced. Something has had to give, and for eleven years, she says, it has been the advocates themselves.
I read this with respect for the economic case she makes about legal services and local content. I read it with alarm for the constitutional case she leaves out. She has, in my view, misunderstood the entire issue.
She writes as though the Rule of Law is a separate line item from lawyers’ economic wellbeing, something the Society can trade off against local content enforcement as a matter of strategy. It is not separate. A bar that cannot speak against the erosion of the courts, against arbitrary arrest, against the hollowing out of constitutional guarantees, will not survive long enough to negotiate anyone’s fee schedule.
The right of lawyers to benefit from this country’s resources cannot be secured by lawyers who have first surrendered their core duty to defend the legal order those resources depend on.
A few questions Ms Suedi has not asked
Is what she calls a mistake a legal failing, or a failing of particular individuals inside government? Does she know that it was the sustained push by TLS and by individual advocates that helped carry Tanzania toward the entrenchment of a Bill of Rights in our Constitution? That did not happen because the profession sat quietly waiting for local-content regulations to be enforced. It happened because lawyers argued, litigated and, yes, confronted.
Has she asked why the First Phase Government attempted to abolish the Tanganyika Law Society altogether, through the Msekwa Commission, on the pretext that it was little more than a minority association? A government does not move to dissolve a professional body it experiences as a comfortable partner. It moves against a body it experiences as an obstacle to unchecked power.
That history did not happen by accident, and the Society’s survival of it is not incidental to the profession’s standing today.
Has she not seen that from the early 1970s, it was TLS and individual advocates who took up the killings of elders in the Lake Zone, at a time when doing so meant confronting entrenched local and political interests, and who helped force accountability where none had existed? Has she forgotten, or perhaps never learned, what role the Society and its members played in the fight for multipartyism and constitutional reform in the late 1980s and early 1990s, a fight fought against a one-party state that had no appetite for challenge? None of that was accommodating. All of it was confrontational, in the plain sense of the word. And none of it would have happened had the Society taken the posture she now recommends.
On who is actually squeezing the private sector
Ms Suedi asks why government has grown its own legal capacity at the private bar’s expense. Fair enough, ask it back: why is the military now in the beer business, running fuel stations, taking on construction contracts and competing directly with private contractors who pay taxes and carry the compliance burden the state does not? Was that crowding-out engineered by lawyers? What of tourism, where operators of every description move in and out of the sector with little apparent oversight? Is that also somehow the fault of a legal profession she accuses of being too combative?
On why disputes leave Tanzania
She notes, rightly, that the law requires natural resource disputes to be arbitrated inside the country, and that this is not happening in practice. She does not ask why. Our own courts are treated as adversarial to the state and to the status quo, and that reputation, deserved or not, is precisely why sophisticated parties structure their disputes to be heard elsewhere, at real cost in revenue and prestige to Tanzania’s own judicial system. And while we are asking uncomfortable questions: was the collapse of media houses in this country caused by a journalists’ association that dared to be critical of government?
The bottom line
Law is a business, but it is a business built on ethics and on principle. It is not the alcohol trade, where the most reliably profitable customer is the habitual drunkard, however much damage he does at home. A bar that measures its success only by how much work the state is willing to hand it has already sold the thing that makes it worth hiring.
A country genuinely committed to good governance is not frightened by constructive legal criticism. Holding government to the law it has itself enacted, including the local-content rules Ms Suedi rightly wants enforced, is not separate from defending the rule of law. It is the same work.
TLS advocates were not called to the Bar to appease power. I would ask Ms Suedi to read our history more thoroughly before she next writes on it, so that a good economic argument is not wasted in service of a conclusion the record does not support.
Boniface Mwabukusi is President of the Tanganyika Law Society
