By Elias Munshya, LLM, MBA, M.DIV.
I commend parliament for considering changes to the Law Association of Zambia Act (LAZ Act). I agree that the LAZ Act needed reform to make it more responsive to present realities. However, the proposed Law Societies of Zambia Bill that is being considered to replace the LAZ Act requires further work for it to bring about real change.
Any Reforms Must Have Input From LAZ
The new bill seems to have had no input from the current Law Association of Zambia (LAZ) Council or its members. While I have had, some reservations regarding some seemingly partisan positions that the current LAZ Council and leadership have taken, I still believe that LAZ must be involved in any discussions involving its future and the future of legal practice in Zambia. I urge the parliamentarian Hon. Kelvin Sampa to contact the LAZ president and council and try to engage them in the discussions to repeal the LAZ Act and in any further deliberations to pass the new bill. I do not believe that the path taken by our politicians is a wise one now. LAZ’s perceived partisanship considered, it nevertheless, enjoys the statutory responsibility to be consulted, particularly, on matters that deal with the regulation of the legal profession in Zambia.
The Bill Must Address Inadequacies with the LAZ Act
The new Bill does not quite address what is inadequate with the current LAZ Act. What the new bill is proposing to do is just to have two or three or four more so called “law societies” without a fundamental change to the basic template in the way lawyers associate and get regulated. We do not need to create more LAZs to resolve the current problems we have with one LAZ. You cannot cure a problem you have with one association, by creating many more associations. The solution should, first and foremost, be such that it creates some needed reform and change to the template, rather than just duplicate and multiply the current LAZ template.
Reforms Should Split Regulation from Fraternity
The problem with the current LAZ Act concerns its dual role as both a regulator and a fraternal association of lawyers. I propose that the first act of reforming LAZ should be aimed at delinking regulation from fraternity. The Law Association of Zambia must be split into two: a regulator and a fraternal representative association. If the government still wants to liberalise the formation of fraternal associations, it can do so while maintaining a single non-partisan and apolitical regulator.
The regulator I suggest can be called the Law Society of Zambia (LSZ) (not to be mistaken with Hon Sampa’s bill, nevertheless). This regulator will concern itself with self-regulation of the legal profession. It will not have a broader mandate of political advocacy, but will be strictly a body that looks at standards, licensing, education, discipline and other general regulatory matters of lawyers. The LSZ will not have the mandate to provide political advocacy. The LSZ can easily be created from the current LAZ committees such as the legal practitioner’s committee and the disciplinary committee. These two committees and their current members can be transformed into the LSZ and begin the duty of a non-political role to regulate how lawyers are trained, retained, disciplined and structured. It can have its own rules adapted from the regulatory regime governing under the current LAZ Act, and the committees that deal with education, discipline, and licencing.
After the regulatory role is taken over by the LSZ, the current Law Association of Zambia can then be transformed into a voluntary representative body of lawyers with unrestricted powers and duties to represent its members and participate in advocacy. If need be, the government can liberalise this fraternity by encouraging the formation of various law associations, as envisaged by Hon Kelvin Sampa’s Law Societies Bill. The law associations will be voluntary, fraternal, and can do political and general advocacy. The associations can also function within the framework of civil society.
If our members of parliament do not agree with me on the above-noted points, and insist on proceeding with the current Law Societies Bill, 2017, I kindly request that they pay attention to the following matters of huge concern:
First, the Bill in its current form should require concurrent changes to other legislation such as the Legal Practitioners Act (LPA). The parent legislation that regulates lawyers in Zambia is the LPA and it seems that a bulk of its powers are delegated to the Law Association of Zambia, and in some respects to the Zambia Institute of Advanced Legal Education (ZIALE). There is need to look at allied institutions when considering the Bill.
Second, on membership to the law societies, the Bill at clause 7 opens membership to “any person who is ordinarily resident in Zambia.” This in my opinion discriminates against Zambian lawyers spread all around the world who would like to be members of the Zambian bar. This provision appears to have been lifted from the current LAZ legal regime, a regime that was created way before the introduction of dual nationality in our Constitution. With dual nationality, it is in the best interest of our nation to have Zambian lawyers in the diaspora satisfy the residence criteria to be members of the Zambian bar. The world has now become a global village and Zambian professionals in the diaspora provide a valuable leverage for the growth and development of Zambia. We propose that clause 7 of the Bill recognises that membership will be open to any citizen of Zambia and any person who is ordinarily resident in Zambia.
Third, clause 15 of the Bill requires twenty years at the bar for one to be elected vice-president or president of the law society. This requirement is way too high. For a country with only just over 1,000 lawyers, it is a bar too high to set eligibility for presidency at twenty years. Zambia currently adds about 200 lawyers per decade. In the fifty years of our independence we only have slightly over a 1000 lawyers, putting a twenty-year requirement further diminishes the talent pool from which to draw leaders of the law societies. Since the positions of president and vice-president are electable positions, we propose that the twenty-year requirement be removed altogether. It is unnecessary.
Fourth, I cannot avoid it, but notice here that the creation of multiple law societies will not actually help protect the public interest. The Bill suggests that each law society will have its own licensing committee, disciplinary committee, legal practitioner’s committee etc. This duplication of roles cannot protect the public and neither is it in public interest. I, therefore, return to the proposal I made in the first part of this article, to create a single apolitical regulator while liberalising association, fraternity, and advocacy. In my opinion, having a single regulator while allowing the formation of several other fraternal law associations will protect the public, while ensuring that lawyers can freely participate in society as active members of civil society.
Suggested Citation: Munshya, E (2017). Hon. Kelvin Sampa’s Law Societies Bill (2017): The Good, The Bad and the Ugly.Elias Munshya Blog. (www.eliasmunshya.org). March 24, 2017.
Elias Munshya practices in Calgary, Alberta with interest in civil litigation, human rights, and regulatory law. In addition to degrees in theology and counseling psychology, Elias holds law degrees from England, Wales, and Chicago, USA.
Just leave everything as they are. One (Linda) person cannot cause the suffering of many.
Agreed! PF’s current problems with Ms Kasonde cannot be the basis for throwing out what has worked for decades. In fact, LAZ Presidents always join the next govt as AG or Legal Affairs Minister as it is almost an established tradition for each LAZ council to oppose the incumbent govt. Let PF grow up and learn to live with critics!
Sampa made good proposals and should be commended.
Linda is a human disgorge and must be rid of.
She has an agenda with HH and their perigrination is misplaced.
Thanks
BB2014,16
@ Ndanje khakis
You are right.
“…One (Linda) person cannot cause the suffering of many…”
That job has been “admirably” and “with great humility” done by “anointed”, “visionary” and CONVICTED EMBEZZLER Lungu!!!
I don’t agree that changes must have input from LAZ, no, no, no.
However, it is logical to say the changes must have input from lawyers, but not LAZ as an association.
You have company enjoying monopoly, then you want to consult them when bring the law that removes monopoly?
And you say that the current Act had no input from LAZ, what are you saying?
The current Act is what brought about LAZ, now how could it have input from LAZ.
It is like you are saying the mother to the baby should have consulted the baby before conceiving it.
May I ask you Mr author, are you related to UPND?
You seem to have the same reverse approach to issues.
Brilliant article. Way to go and I support it 100% +1. This is good because it will eliminate politicians from the association.
Zambia is a farm where some animals are more equal than others.Zambians are not equally yoked before the law and some laws are often flouted by the powerful for political expedience.
All professionals must have an obligation to render service to communities they operate in. Economists, Engineers, Medical practitioners, Journalists, etc are supposed to do it. While reform & dynamism is key to societal development, breaking up these institutions just because status quo doesn’t agree with them is negative. Look at what FTJ did to the labour unions. LAZ by nature will always clash with lawless govts but breaking it isn’t a solution. Its also wrong to label them partisan just because they haven’t agreed with Chagwa.
What we need is a stronger separation of powers so that any society that strays can be legally challenged.
Quote: “What we need is a stronger separation of powers so that any society that strays can be legally challenged.”
But isn’t that Elias Munshya is suggesting by proposing “to create a single apolitical regulator while liberalizing association, fraternity, and advocacy…having a single regulator while allowing the formation of several other fraternal law associations will protect the public, while ensuring that lawyers can freely participate in society as active members of civil society”?
In my humble opinion, I think the suggestions put forth here by Munshya makes a lot of sense and will curtail the politicization of LAZ by the current and future leadership.
THE PF CANNOT BE CHANGING LAWS TO SUIT THEM. ANYONE WHO MAKES A POINT REGARDING THE RIGHT AND LEGAL WAY THEY PERCIEVE AS THEIR ENEMIES. PLEASE LET US BRING BACK SANITY TO OUR COUNTRY. WE SHOULD NOT BECOME A LAWLESS STATE AS IS THE PRACTICE NOW. OUR COUNTRY IS BEING RULED BY UNRULY CADRES.
Instead of concentrating on Zambian citizens and residents, my suggestion is that let’s allow membership to any suitably qualified person. This will enable other qualified lawyers to come and represent clients or invest in legal firms, legal aid and provide an international dimension to law.
Don’t amend or repeal laws because you have an interest to protect. Look at our constitution. From independence to today , we are still struggling to come up with a better constitution. Today , PF party may do what they wants ,tomorrow they will not be there and others who will come after them shall have a licence to do what they want. The circle will continue and the country suffers.
It is interesting to see a non lawyer propose a bill. He must clarify on how the law society will operate without attacking the current LAZ executive .Kasama lawmaker must discuss the benefits and drawbacks of the new bill, current LAZ act, the implementation strategy of the new bill, and cost and benefit of the new bill
But our Constitution was suggested, debated, scrutinized, flushed out, and so forth and so on, by Zambians themselves. How many years and sittings did it take for us to reach where we are today as regards to our Constitution? So to suggest that somehow the PF, or the MMD, or UPND, or the FDD, or President so and so injected more “PERSONAL” or “POLITICAL” influence in the birthing of our current Constitution is really to deliberately IGNORE the PROCESS that preceded the enactment of our current Constitution.
If there are still problems with our current Constitution the adult thing to do is to get on with the business of making AMENDMENTS to make it better. And NOT to engage in unfounded blame games. Even long standing Democracies have made amendments to their Constitutions.
In…
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… the case of the U.S.A, “Thirty-three amendments to the United States Constitution have been proposed by the United States Congress and sent to the states for ratification since the Constitution was put into operation on March 4, 1789. Twenty-seven of these, having been ratified by the requisite number of states, are part of the Constitution. The first ten amendments were adopted and ratified simultaneously and are known collectively as the Bill of Rights. Six amendments adopted by Congress and sent to the states have not been ratified by the required number of states. Four of these amendments are still technically open and pending, one is closed and has failed by its own terms, and one is closed and has failed by the terms of the resolution proposing it.”
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That is why it is important to check PARTISAN and POLITICS at the door when tackling issues of the CONSTITUTION! It shouldn’t be looked at as a win or loss to one side or the other. When AMENDMENTS are suggested, cooler heads on both the Opposition and the Party in power in Parliament ought to prevail.
No one gets it right the first time. It has taken countries like America and the UK centuries to get to where they are today—that’s CONSTITUTION MAKING FOR YOU!!!!!!!
What will stop the Regulator from being partisan?
Munshya makes a lot of sense, especially in the first part. Let the regulator stay away from politics and defending criminals the way the Linda led LAZ is doing. Instead of siding with zambians to recover what is due to them they are defending the law breaker. How can one collect PAYE, NAPSA and charge VAT but pocket all the cash.
Ask Pepsi how they manage NOT to pay VAT, EXCISE, CORPORATE TAX and CUSTOM DUTIES???
@ECL, that’s a bogus and nonsensical retort!!!
What exactly are problems besetting LAZ? The Role of LAZ is to protect the Rule of Law,Constitutionalism,Social Justice and Good Governance (Section 4 of the Constitution). Where has LAZ failed in its Oversight and Advisory Role? Why fix it if ain’t broken? U cannot come up with a Bill to Regulate the Legal Profession without the input and participation of the Registered Lawyers who are Members of LAZ. Any Reforms needed in the Legal Profession must come from the Legal Society itself. Its absurd for Traditional Healers to come up with a Bill to Regulate Medical Practitioners. What do Herbalists know about the Medical Profession? Why a Private Member’s Bill? If Govt sees the need to Reform the Legal Profession then they must start consulting LAZ in the first place. What interests does…
I agree with you Mwape. These question must be answered before any stupid bill is taken to Parliament for of members who just vote on a motion without understanding it. Look at the case of university loans to students brought on the floor of parley by Nkombo. What was the response from PF members? A stupid no with Nkandu Luo failing to see objectivity in the motion but accusing GN of inciting students to riot. So the questions to be asked and answered are: What are the short falls of the current LAZ act? Have the members of LAZ seen it fit to amend the Act? Have they discussed among themselves and pass a resolution to amend the act? I believe the answers to these questions are a big NO. So let the status quo be. Other professional bodies should take note of this and support LAZ. They…
What did I tell you. Lungu has just directed the police crooked commissioner to reject our rally based on silly reasons. Zambia yasila. Pf are scared and thus this is a sign that they lost those elections. Lungu will.die soon anyway.
Munshya’s proposals are very welcome. Linda’s contribution is her partisan behavior which has opened up this discussion. Anyone who can’t see her biased inclination is myopic and does not wish that country to move forward. Developed countries have taken years to improve their systems, we can’t skip steps.
Mwisho you are not being rational in your argument. We are dealing with a crop of leaders who grew up in an error when Bullying was the in thing and worse still they have combined with Cadres and thugs. Law to them is an obstruction to their cause. This Bill should not be entertained because it is not done in good faith.
PF is a lawless gang of selfish individuals who can’t even see that they will need these institutions sooner or later because it is obvious they are asking for their way out.
‘Musalu ali pesamba mailo nipamulu’
Good proposals sir. Let’s hope other lawyers will see it the way you do. The problem in this country is greed, those lawyers that will be given something by the powers that be will abandon their principles.
Just like other bloggers have said, I’m perturbed that PF want to split LAZ because of one individual they don’t like. She’s not a permanent person on the seat and one day she will leave that office. Matter of fact she is just a voice for other lawyers. Let PF grow up fast. We are tired of pf diapers!
Separating regulatory function and advocacy function, i.e. splitting LAZ into 2 separate entities is ridiculous. Each profession needs to be regulated in accordance the law. Regulation concerns recruitment of legal practitioners in terms of valid local and foreign qualifications. This is necessary to keep out charlatans. However, the silent professional regulator is useless. Each professional body, particularly LAZ must carry out advocacy functions on any political, economic, social or cultural issue. In a nutshell, LAZ is doing a great job. LAZ must be commended for a job well done.
PF is proposal changes to reduce criticism. This will pass and they will be out of power.
sampa’s face is loopsided and he blames the mirror
Four people you can never advise
1. A woman in love
2. A person with money
3. A person who supports arsenal
4. A pf cadre
I agree with you that the dual functions of LAZ are in conflict. LAZ only needs to retain the regulatory function, but what you need to address is the mechanism to ensure its fair execution. The disciplinary and licensing committees comprise elected individuals whom we can’t expect to always be impartial. What we might end up with a something like the Health Professions Council of Zambia which regulates all health practitioners and is a quasi government institution. However, health practitioners have their own fraternal associations like that for pharmacists, dentists, surgeons, radiographers, etc. Could we be headed in that direction?
as disgraced itself. The long and short of it is that had they rejected Linda’s behaviour, it would be a small matter of replacing her. But they have held together and even worse, resurrected Nchito….of all people! That was a provocation too far! They are not performing well, with investigations, disciplinaries still lagging behind. What use are they then?