106

Chapter Thne

for such a role-independence from government pressure, and public

understanding and support for itself.48:J
Public understanding and support for the legal profession is only
achievable if the Bar is able to demonstrate that it takes a strong stand on justice
and equality, and against violations of human rights in society. This must be by
deeds as well as by words. It also entails a true demonstration of a commitment
to serve, expressed more concretely in its members' own relationships with their
clients and society generally. More significantly for the purposes of this work,
the legal framework and practice within which the profession operates must
reflect the full performance of this sacred duty. As will be evident from the
discussion that follows (especially in chapters Five, Six and Seven), the existing
legal regime falls lamentably short of that ideal

4a>

Ghai, Y.P. and McAuslan,J.P.W.B. (1970), -

at., at p. 406 .

.........

...

CHAPTER THREE

The Role and Function of the Legal Profession

" . . . I mention this to stress, from the perspective of
those who engage our services, just how important is
the 1J)()rk we do far our clients ... Not least is this
becaus I!] doing so we help lo hep the flame of
freedom alive. We can be quietfy proud of our role in
society."

- Lord Alexander of Weedon.297

1.

Introduction

In the case of Pett v. G1"9hot1nd Racing Association LJd, Lord Justice Denning
had this to say:
... If justice is to be done, [everyone] ought to have the help of someone to speak
for him. And who better than a lawyer who is trained for the task? I should have
thought, therefore, that when a man's reputation or livelihood is at stake he not only
has a right to speak by his own mouth. He also has a right to speak by counsel or
solicitor. 298

Before reaching this conclusion, the learned Judge had explained why a
litigant or accused would need a lawyer. He said: "It is not every man who has
the ability to defend himself on his own. He cannot bring out the points in his
favour or the weaknesses in the other side. He may be tongue tied or nervous,
confused or wanting in intelligence. He cannot examine or cross-examine
witnesses ... " For this reason, opined the distinguished Judge, it is important if
justice were to be done that every person should have a lawyer to represent him.
The lawyer's tasks, however, are not limited to advocacy. They encompass a
wide range of activities, each one carrying its own importance. The aim in this
chapter is to discuss these different roles that the advocate plays in his everyday
work, and some of the common problems the profession has encountered in the
discharge of those duties.

"197

298

Alexander, Lord (1992), op. dt., at p, 238.

(1969) 1 Q.B. 125 at p. 132.

Chapter Three

74

2.

The Legal Practitioner

2.1. The Advocate Defined

The law defines an advocate as any person whose name is duly entered
upon the Roll. 299 The "Roll" means the list of advocates kept by the Registrar of
the High Court of Tanzania in accordance with the provisions of Part II of the
Advocates Ordinance.P? In order for one to be eligible for enrolment, one
needs to possess certain qualifications, both academic and professional, and pass
certain interviews conducted pursuant to section 8 of the Act.301 Qualifying,
however, is the subject-matter of our discussion in Chapter Five. I shall
therefore not go into details here.
Enrolment as an advocate carries with it a privilege of monopoly.
Advocates are the only persons in Tanzania who are entitled to practise law
generally in all the regular courts302 and most tribunals, and to use the title
"Advocate of the High Court of Tanzania".303 They are also, by virtue of their
office, commissioners for oaths and notaries public.}04 Advocates' seniority as
among themselves depends on the order of entry of their respective names on
the Roll of Advocates. Where more than one advocate is engaged by a p in a
case, the leading counsel will be the. one whose name appears on the Roll above
the other.305

2.2. Other Qualified Officers

In addition, the Advocates Ordinance entitles certain Government and
parasiatal officers io practise as advocates of the High Court and subordinate
courts and
such to. perform the functions which in England may be
performed by a rriember of the Bar or by a solicitor of the Supreme Court of
judicature.P? These officers do not have to be enrolled as advocates, and only

as

m Section 2 of the Advocates Ordinance. See also section 3 of the Interpretation of Laws Act,
1996.
300

JOI
302
303

J04

305

JOG

Section 6 of the Advocates Ordinance.

EspeciaIIy subsections (1) and (3) of section 8 of the Act. See also the Advocates
(Professional Requirements) Regulations, 1973.
The only exception here is the Primary Courts: See section 33 (1) of the Magistrates Courts
Act, 1984, No. 2 of 1984.
This privilege is presumably derived from the provisions of section 66 of the Advocates
Ordinance.
Section 3 of the Notaries Public and Commissioner for Oaths Ordinance, Cap 12 of the
Laws.
Section 9 of the Advocates Ordinance. However, the Attorney General takes precedence
over all other advocates, and the Chief Justice may accord any person who was, immediately
before his admission 10,.t!ic Roll, the holder of a public office to which the provisions of
section 3 of the Advocates Ordinance apply. The provisions of section 3 ate set out below.
Section 3 (1) of the Advocates Ordinance.

The Role and Funaio of the ugal Proftsnon

75

an exceptional few of them are on the RolJ.307 They are therefore not allowed to
use the title "advocate". They are nan{ed in sub-section (2) of section 3 of the
Act as follows:

1.

2.
3.

4.

5.

The Attorney-General, Parliamentary Draftsmen and State Attorneys and

any other person duly qualified holding office in the Attorney-General's
Chambers;
The Legal Secretary, Income Tax Department;
Any person duly holding office in any municipality established under the
Local Government (Urban Authorities) Act308 or any township authority
established under (that Act] or any authorities established under the Local
Government (District Authorities) Act;3()C)
The Registrar-General, Administrator-General, Public Trustee, Official
Receiver, the Commissioner for Lands and any person duly qualified
holding office in the office of the Registrar-General, of the AdministratorGeneral, or of the Official Receiver or the Land Office;
Any person duly qualified holding office in such parastatal organisation as
the Minister [responsible for justice] may, by order published in the
Gazette, designate for the purposes of this section;

"A person duly qualified", for the purposes of the above provisions is "a
person who is the holder of one of the professional qualifications set out in
paragraph (a) of subsection 8."310 Except where expressly provided in the
Advocates Ordinance, these officers are not subject to the provisions of the
Ordinance.

Most lawyers in the government are engaged in administration. A few

perform some solicitor work, such as drafting documents, etc. They may
sometimes appear in court, but usually as witnesses, since government
departments are represented by State Attorneys in all litigation. Although their
duties are usually legal in character, and some of them have, under the
provisions section 3 (2) quoted above, a statutory right of audience in courts,
their participation as counsel (as is any other task they may perform) is limited to
their duties and employment as public officers. They are not advocates in the
full sense of the term, neither are they notaries public, nor commissioners for
oaths. They cannot, therefore, administer oaths or certify to the authenticity of
307

In fact, the practice has been that lawyers employed by the Government are required to
resign from their employment before they can be enrolled as advocates: See Chapter Five,

JOB

Act No. 8 of 1982.

Act No. 7 0 1982. This provision appc2rs again in the respective legislations. even though
the provisions there arc seemingly wide.r, in that they do not make reference to the
requirement that the officer should be duly qualified as per section 3 (3) of the Advocates
Ordinance. See, for instance, section 100 of the Local Government (Urban Authorities) Act,
No. 8 of 1982.
See Chapter Five, infm, for a discussion of the way the provisions of this section apply in
practice.

infm.
309

JIO

76

Chapter Tbree

documents unless the law specifically gives them such powers.I'! State
Attorneys, on the other hand, are advocates in terms of the Advocates
Ordinance.t'f But th.is is limited only so long as their actions are within the
scope of their duties as State Atromeys.t'?

3.

The Demand for Legal Services

As argued in Chapter One, several factors combine to create demand for

legal services. Apart from those already mentioned (i.e., increase in the
legalisation of social relationships, greater internationalisation, greater population
diversity and lawyer-created demand), one can add the following: improved
performance of the economy, changes in wealth levels, and individual and social
decline (leading to a rise in crime and matrimonial difficultiesj.!'" Ian Ramsay315
adds a few others: The creation of new rights, increasing bureaucratisation and
administrative remedies, increasing complexity of business transactions and
financial innovations.Us increasing privatisation of the economy, and
urbanisation.t'? Some of the tasks brought about by the above factors are also
performed by other professions, such as real estate agents.iaccountants, etc. Why
then do lawyers tend to dominate these fields, or at least some of them?
The reasons are that lawyers have monopolies in some of the tasks, and in
others they have certain advantages from the point of view of clients. As many
transactions occur within a regulatory framework, it becomes important to
Apart from advocates, such powers can only be exercised, at present. by Magistrates
(pursuant to section 3 of the Oaths Qudicial Proceedings and Statutory Declarations) Act,
No. 59 of 1966) and counsel of the Tanzania Legal Corporation, per the Advocates
Ordinance (Application of Section 3 to the Tanzania Legal Corporation) Order, 1971, G.N:
No. 154 of 1971.
m Subsection (2) (a) of the Act.
m Zuberi Gigi v. Tbe 'f!.ttunting Officer, Babati & Anor. (1974) LRT n. 52. In practice, State
Attorneys sometimes act as commissioners for oaths and notaries public, even though, to
my knowledge, there is no express provision in the law that gives them such powers. The
Notaries Public and Commissioners for Oaths Ordinance (Cap 12), and the Oaths Oudicial
Proceedings and Statutory Declarations) Act. 1966, make no mention of them.
Jl4
Clark, R. (1992), op. at., at P. 275-302.

l1S
Ramsay, I.M. (1993), up. dt., at pp. 1355-389.
316
McBamet and Whellan argue that there is a dynamic interaction between legal regulation
and the way in which transactions arc structured or business undertaken: See McBamet, D.,
and Whellan, C. (1991 ): "The Elusive Spirit of the Law: F orm.alism and the Struggle for
Legal Control", Mod. L s: 54, at pp. 848-873.
317
For some discussion about the legal problems of urbanisation in Tanzania, see Fimbo, G.M.,
"Double Allocation of Urban Plots: A Legal Labyrinth, Citizen's Puzzlement, and
Nightmare", and "Planned Urban Development versus Customary Law in Tanzania", both
in Fimbo, G.M. (1992): E.S.T'!)'I in Land LJl1JI Ta11z.ama (Dar es Salaam: Faculty of Law) at pp.
GS ti 1eq, and 84 el seq. respectively; and Twaib, F. (1997, forthcoming): 'The Dilemma of the
Customary Landholder: The Conflict Between Customary and Statutory Rights of
Occupancy in Tanzania's Land Tenure System", to be published in Debusmann, R. (1997,
forthcoming): Land Law and Land Ownmhip in Afri,a: Cas S111die1 from Colonial and
Cont,mpora,y Cameroon and Tanzania, Bayreuth: Eckhard Breitinger.
.ll 1

The &le and Funaio of the Ltgal Proftuion

77

involve a legally trained mind.318 The existence of the above conditions is part
and parcel of any modem society. We are thus bound to see an ever-increasing
demand for lawyer's services, as society moves towards more and more
regulated relationships. Even in the remote areas of the country, lawyers can play
an important role, at least as advisors-especially where the parties to a case stand
in an unequal financial and social relationship to each other. A good example
here is women and children.P?

4.

Tasks and Duties of an Advocate

4.1. The Scope of Work Tasks

The role of the lawyer in a modem legal system cannot be overemphasised.
This is true even in the developing world:
The process of rapid modernisation and industrial expansion has brought and is
bringing an increasing number of people into relationships regulated not by
customary law, but by statute and the inherited corrunon law and it is in connection
with these relationships and the enforcement of legal rights arising therefrom that
the necessity for legal aid is most apparent.J20

As we have already seen, the Tanzania legal profession is a fused one. Once
enrolled, an advocate is entitled, upon meeting certain formalities, to do all acts
and things that can be done by a barrister or a solicitor in England.v' Every
advocate who has a valid practising certificate may practise as an advocate in the
Court of Appeal of Tanzania,322 the High Court of Tanzania and all courts
subordinate thereto,323 except Primary Courts.P' Every advocate in Mainland
Tanzania is automatically entitled to act as a commissioner for oaths and notary
public.325 Against payment of the prescribed fee, therefore, an advocate has the

:ll8

Gilson, R. (1984): ''Value Creation of Business lawyers: Legal Skill and Asset Pricing", Yak

LJ., vol 94, p. 239 at pp. 296-297.

Sec, Wanitzek, U. (1990), op. at., for examples of how legal representation could be of help
to women and children. The FILMUP (short for Financial and Legal Management
Upgrading Project) also saw the need to have lawyers as advisors in the lowest courts in the
country: Sec the United Republic of Tanzania, FILMUP Legal Task Force (1995): ugal
Ste/or &port, at pp. 65 and 68.

320 Ross, S.D. (1973): "A Comparative Study of the Legal Profession in East Africa, jatmUJJ of
Afamn Law, vol. t 7 at P: 294.
32l
Colc,J.S.R. and Denison, W.N. (1964): op. at., at p. 116.
322 Rule 31 of the Tanzania Court of Appeal Rules, 1979, G.N. 102 of 1979 .
.m Section 40 of the Advocates Ordinance.
324 Section 40 of the Advocates Ordinance, read together with section 33 (1) of the Magistrates
Courts Act, 1984.
l2S Section 3 of the Notaries Public and Commissioners for Oaths Ordinance, 1964, Cap 12 of
the Revised Laws. See also section 11 of the Oaths Qud.icial Proceedings) and Statutory
Declarations Act, No. 59 of 1966. The position in Zanzibar is discussed in item 3.3.,
Chapter Eight, infra.
319

Chapter Three

78

power to administer oaths, to certify the authenticity of documents; and to do

everything that can be done by such persons according to English law.326
Consequently, the kinds of work that lawyers engage in are broad and
diverse. Even in those tasks in which they concentrate most of their efforts,
there is great variety and scope: advice, negotiation, drafting, conveyancing,
litigation, factual investigation, and legal research and analysis.327 This wide
spectrum of lawyers' activities helps explain the considerable influence they
enjoy in society.328

4.2. Lawyers' Role Outside the Court

It is true that the lawyer plays a crucial function in court litigation. Whether
in trials or appeals, court work provides a sharply focused context in which the
drama of human conflict and its resolution is played out.329 Like surgery,
advocacy is enormously consequential, and its performance is highly ritualised.P?
But the lawyer's services are not only rendered in the court room, though it is
here that his job is more public and its consequences more pronounced. The
lawyer's tasks begin well before. the matter goes to court (if it ever does) and
continues well after the court has done its job. Even for a court case, a lawyer
has to start by interviewing his client, advice him on the right course of action,
read. and refresh himself on the relevant law, offer opinion. on matters of fact
and law, prepare documents for filing in court, collect evidence and interview
witnesses, etc. All these tasks must be performed. before the drama in the
courtroom can begin. And they take more time-and perhaps more input-to
discharge than the few hours actually spent in court. Furthermore, as Harvey
reminds us, contrary to the belief held by many laypersons and probably by
some lawyers about law and lawyers:
The most significant functions of the legal order are not reflected in the processes of
litigation, that is, in the adjudication of disputes by courts. In a sense these processes
represent, not the successful operation of legal techniques for social ordering, but
their breakdown.331
The powers of commissioners for oaths are set out in sections 1 and 11 of the English
Commissioners for Oaths Act, 1889. A commissioner for oaths is "a person appointed by
the Lord Chancellor to administer oaths (including affumations and declaration) to persons
coming before them". A notary public is "a person who attests the execution of any deeds
or writing, or makes certified copies of them in order to render the same authentic,
especially for use abroad." The English Solicitors A ct, 197 4, gives such powers to every
solicitor who has a practising certificate. In Tanzania, they arc also exercisable by all
Magistrates and High Court Registrars on ex effido basis: section 10 of the Notaries Public
and Commissioners for Oaths Act, t 964, as amended by Act No. t 3 of 1972.
sn: Johnstone, Q., and Hopson, D. (1967), op. at., at pp. 5- 6.
.,211 Ibid., at p. 130.
32'J
Harvey, W.B. (1975): An lntrod11(tion to tbe ugol Sysltm in East Africa, Dar cs Salaam: East
32.6

.lW

African Literature Bureau, at p. 1 13.

Abel, R. (1988), op. at., at p. 293.
Harvey, W.B. (1975),.0P dt., at pp. 113-114.

..

'

The Role and Function of the Legal Profession

79

Indeed, the court process is evidence of the failure of the legal order to
ensure social justice and peaceful co-existence. It is, nonetheless, an important
and crucial function of the legal system,3l2 as some conflicts in society cannot be
resolved through private action, hence the necessity to involve public organs of
dispute settlement. In a stable society, therefore, where conflict is keptwithin
bounds, litigation may not be the primary or basic expression of law and justice.
The lawyer has thus an equally important role to play apart from litigation.

4.3. The Diversity of an Advocate's Duties

There are several features that characterise the place of the legal practitioner
in society. These relate to the various duties that attach to advocacy: duty to his
client, to the court, and to society. Sir Edward Marshall Hall in his biography is
quoted as saying:333
Now it is difficult for any man, however wise or eloquent to speak for himself, when
fortune, reputation, happiness, life itself, are in jeopardy and rest on the decision of
strangers, sworn before God to find an impartial verdict &om the evidence brought
before them. Hence has arisen the honourable and necessary profession of the
advocate; it is indeed a high and responsible calling: for into his keeping are
entrusted the dearest interests of other men. His responsibility is wider in its scope
than a physician's and more direct and individual. than that of a Statesman; he must
be something of an actor not indeed playing a well-learned pan before a painted
scenery, but fighting real battles on other men's behalf in which at any moment,
surprises may render all rehearsal and preparation futile.

Lord Macmillan, formerly of the House of Lords, classified the duties of

the advocate as five-fold: In the discharge of his office the advocate has a duty
to his client, a duty to his opponent, a duty to the court, a duty to himself and a
duty to the State. Judge Mwalusanya334 argues that Lord Macmillan could, and
some say he should, have included other duties in that already formidable list In
the circumstances, therefore, the advocate's position is far from enviable: " ... a
good advocate must be histrionic, crafty, courageous, eloquent, quick-minded,
charming and great-hearted. He is not a mere mouthpiece of his client. His
office is a higher one. To consider him in that light is to degrade him. He gives
to his client the benefit of his learning, his talents and his judgment."335 In Lord
Macmillan's words: "To maintain a perfect poise amidst these various and
sometimes conflicting claims is no easy feat."336

4.4. Advocacy and Legal Representation

It is now an accepted principle of fair justice that every person has the right
to be represented by counsel whenever he needs such representation. In certain
332

m
3).4

33s
3:16

lbid., at P: t 14.
Matjoribanks, E., Famo11s Trials ofManha/I, London: Penguin, at P: 9.
Khassim Mak II. R., op. al. at P 33.
Ibid.
Quoted by Mwalusanya, J. in Kbassim Ma11.JMlt v. R., ibid., at P: 32.

Chapter Time

80

instances, especially where one is charged with a serious offence likely to result
in a capital punishment or a long term of imprisonment, this right is absolute,
and an accused person can demand to be provided with an advocate at the
expense of the State.337 Why is the right considered so important?
4.4.1. Convicted-by the P11blic

It is not uncommon to hear someone saying: "I know him. He is a crook;

he must have done it". The opposite version would be: "No, he could not have
done anything like that''. These statements represent the two forms of verdicts
the public regularly reaches. about some members of society. As Mellinkoff
argues,338 we individually convict and acquit long before we have heard any
evidence either way. At the same time, we acknowledge the imperfections that
each one of us has-imperfections which pervade human society in all its forms:
indigestion, liars, cheats, haters, poor vision, jealousy, disappointment, and even
headaches. These are factors which may well lead one to mistake falsity for truth,
and vice versa. To alleviate the dangers of such imperfections, society has come to
accept the presumption of innocence-:-that one is not guilty unless and until the
contrary is proved-as a fairer method of judgment.339 It is for this reason that
the concept of "Due Process" has become such an important aspect of the
justice system. The term dates back many centuries ago when it was used for the
. first time in England to mean:
That no man of what estate or condition that he be, shall be put out of land or
tenement, nor taken nor imprisoned, nor disinherited, nor put to death, without
being brought in answer by due process of the law.340

Yet, there are always strong inclinations to disregard this principle.

Tanzania has had its own share of such instances, especially in the first two
decades of independence. ln 1975, a most radical recommendation was made to
the Judicial System Review Commission (known as the Msekwa Commission).
The Mbeya Regional Executive Committee of TANU (then the ruling party)
advised the abolition of several institutions involved in the administration of
justice and gave some rather interesting grounds for the recommendations.Y'
Among its proposals were:
1.

The abolition of the court system, and its replacement with "People's
Justice Tribunals " (Mabarazaya Hakiya Umma) composed of 12 members,
all of whom would not be legally trained except one (the Secretary) who

Kbassim Ma1!JM!t v. R, ibid.

Mellinkoff, D. (1973): The Conscimct of a. at P: 6.
The operative provision iri Tanzania is Article 13 (6) (b) of the 1977 Union Constitution.
Statute of 28 Edw. Ill, Ch. 3 (EngLmd).
Sec Appendix C.6. "Memorandum Submitted by the Mbeya TANU Regional Working
Committee", in The Msekwa Commiuion &port (1977), op. at., at pp. 367-372.

338

H9
3-40

341

. The Role and function of the Ltgal Profusion

2.

3.

4.

5.

81

would have no say in the tribunal's decisions. His only role would be that
of advising the Tribunal on matters of law;l42
The abolition of the Criminal Investigations Department (C.I.D.) because
"the people"343 are the ones who witness the crimes being committed, not
the investigating officers. There would therefore be no need for any
investigations to be conducted. "The people" would know the truth, and all
they needed to do would be to testify before the "People's Justice
Tribunal";*'
The abolition of the Directorate of Public Prosecutions and the office of
public prosecutors, because they are not the investigators, and neither are
they the witnesses to the crimes. Again, th.is role (of prosecuting) was to be
carried out by "the people";l45
Repeal of the Law of Evidence Act and its replacement with an enactment
that would allow for "the public's testimony" to be conclusive evidence of
the truth of every case. Apparently, this would have included hearsay
evidence;l47

The "total abolition" of the private legal profession, because its structure
was "totally useless" and inappropriate. It was also contended that private
advocacy "encourages exploitation" and the distortion of truth, promotes
corruption, victimisation and hatred among people, and is contrary to the
policy of socialism and self-reliance. 348

Obviously, this was a perfect recepe for authoritarianism. The main

rationale for these recommendations was that the people (neighbours, villagers,
victims of crimes, etc.) were the only ones who could tell whether a person was
guilty or not. Their word should therefore be taken to represent the truth. In
fact, the recommendation envisaged a situation whereby the roles of accuser,
prosecutor, witness and (indirectly) the Judge would be placed in one entity. It
was felt that this would do away with the need for professional lawyers and
institutions for the administration of the law, which the Committee considered
too expensive, unnecessary, and irrelevant. Fortunately, neither the Commission,
nor the Government, seem to have put much weight on the recommendations,
except, and only in principle, on the one relating to the abolition of the private
Bar. However, even this one was not implemented.349 Only Zanzibar, as we shall
see in Chapter Eight, went a step closer to such a situation,

342
343
344
34S

7
34

l48

349

Ibid., Recommendation 1-1 (a)-(Q, at p. 368.

The Memorandum uses the Kiswahili word "Umma" to mean "the people" or "the public".
This could present its own problems. But thac question falls outside the scope of this work.
Op. dt., Recommendation 1-1 (ii), at P: 369.
[bid., Recommendation 2-1 (i), at p. 369.
Ibid., Recommendation 4-1 (i), at P: 371.
Ibid., Recommendation 4-1 (ii) (a), at P: 371.
Ibid; Recommendation 3 (i)-(v), at P: 368.
See Chapter One, sllj)ra.
;

1,\t

Chapter Three

82

4.4.2. The Position According to ugislation

While in some countries the right .. to legal representation is a common law
right,350 in Tanzania it is a statutory rigt,3S1 and has been so recognised by the
courts.352 But in the case of Kbassim Manywele v. R,353 the High Court went a step
further than the position hitherto and gave the right to representation by an
advocate the statusof a human right under the Constitution. The Court inferred
the right from the provisions of Article 13 (6) (a) of the 1977 Union
Constitution, which presume the innocence of every person accused of a
criminal offence until the contrary is proved.3S4
4.4.3. The Case LJIW Position
Tanzanian courts have not had much opportunity to develop the law on
rights and privileges of advocates. However, there is a wealth of authorities,
some binding and some highly persuasive.t= from English case law and other
commonwealth countries. For this reason, reference to English cases on
solicitors and barristers will be made to explain the extent of the rights and
privileges. As far as can be deduced from the practice in Tanzanian courts, the
English position appears to apply, 11111/alis 11111/andis, to Tanzania: This is also
supported by the provisions of the Advocates Ordinance under which advocates
are allowed to " .. '. perform any of the functions which in England may be
performed by a member of the Bar as such or by a solicitor of the Supreme
Court as such".356 As far as possible, however, references will be made to cases
stating the law as it stood in England on the 22nd July, 1920, which is the
reception date for Tanzania Mainland.357 Hence, more recent decisions are only

E.g., in South Africa: Brink 11. Commissiontrof Prisons 1960 (3) S.A. 65, at 167. Sec also Mandt/a
MinulerofPnsons (1983) (1) S.A. 938 A 957 at 959.
JSI
Section 310 of the Criminal Procedure Act, No. 9 of 1985.
m See Khaslim Maf!Y1Ptle 11. R; D.P.P. 11. RM1,aim11kam11 (1982) T.LR., 139; ]01h11a .r/1 Nkonoh v. R
(1978) T.L.R. n, 24; and M11gema 11. R (1967) E.A. (1967) E.A. 676. Cf. the statement of
Justice Bennet of the High Court of Uganda in Y11t11fa s/o Gita 11. R (1958) E.A. at P: 681:
"Every accused has the undoubted right to be defended by the counsel".
m Ibid.
;s. Where the freedom of an individual is at stake (such as in criminal cases), the Court cited
Article 15 (2) of the Union Constitution, which provides for the protection of the right to
personal liberty. Sec also Chapter Four, infra, where the implications of the decision in
I<.haJsim Maf!YMk's Cast on legal aid services are discussed.
sss For a detailed account of the application of the principles of precedent in Tanzania, see
Sawyere A. and Hiller, J. (1971): The Doctrine of Padml in the Collrl ofAppia/ of East Africa,
Dar es Salaam: Tanzania Publishing House.
35G
Section 40 of the Advocates Ordinance.
357
See section 5 of the Constitutional (Consequential, Transitional and Temporary Provisions)
Act, 1984, and section 2 (2) of the Judicature and Application of Laws Ordinance, No. 51 of
1961. Zanzibar's reception date is 7th f July, 1897: See Chapter Eight, infra.
sso

111.

'

The Role and I-unction ofthe L.tgal Profession

83

cited to show that the position has not changed and for their persuasive value as
precedents. 358
In Almasi Kalumbeta vs. R,359 Samana, J. (as he then was) held that ''Legal
representation is a universally recognised right and is provided for by the law
under section 190 of the Criminal Procedure Code."360 In Kbassim Manywele v.
R,361 the High Court held that every accused person has a right to legal aid,
guaranteed by the Constitution, that the court has the duty to inform the
accused of this right, and that the State must pay for the lawyer's services. The
High Court also held that once it is shown that legal representation had been
improperly denied, then an appellate court cannot properly consider whether
from the record there was any possibility of a different result. The reason is
obvious: The evidence on the record might well have been different had the
accused been legally represented. The court quoted the rule laid down by the
Federal Supreme Court of Rhodesia and Nyasaland in [oanno u: R:362
... If prejudice through lack of legal representation is shown, the evidence available
for consideration is not that evidence which might have been before the court with
proper legal representation and no good purpose is served by .assessing the
correctness of the conviction.

In Laurent s/ o Joseph v. R,363 the accused was unrepresented in his trial. On

appeal to the Court of Appeal, Mr. Justice Makame held that the court could not
be certain as to whether, had there been legal counsel, a different picture would
not have emerged. In Alfy Shamle & 2 Or1. v. R,364 Samatta, ]., (as he then was)
went one step further. He held that denial of justice could also be occasioned to
the co-accused where one of the accused lacked legal representation, and was
consequently unable to properly defend himself:
It is very possible that if the seventh accused had been legally represented, the

credibility of some of the witnesses on whose testimony the convictions were based
would have been demolished through skilful cross-examination by the 1awyer. One
cannot say with any degree of certainty, in my opinion; that the other accused wou1d
have been convicted.

In an appropriate case, therefore, the effect of lack of legal representation is

the nullification of the trial altogether. This position was put in clear terms by
Mr. Justice Russel in the case of Manyimba v. Uganda}6S His Lordship held that
the mere fact th_at the accused was denied legal representation was enough to
J5a

3S9

"'
36!

362
363
364

l6s

See Sawyerr A. and Hiller, op. at., and the case of J11m11fyaya Wafanya/ea:d Tanz.ama v. Kiwanda
,ha Uchapuhaji ,ha Taifa, Civil Appeal No. 12, C.A.T., Dar es Salaam (unreported).
(1982] T.LR 329.
Now repealed and replaced by the Criminal Procedure Act, No. 9 of 1985. The provision
appears under section 310 of the new legislation.

Op. at.
(1957) R & N. 623, F.S.C., 624 at 625-6.

(1981) T.L.R. 351.

Crim. Appeal No. 11 of 1985, H.C.T., Dodoma, at p. 6 of typed judgment.
(1969) E.A. (U) 433 at p. 439.

Chapter Three

84

render the trial a nullity. This was, as he had found," ... a fundamental defect of
irregularity which vitiates the trial." It would "amount to defeating the
appellant's constitutional rights by canvassing a further issue as to whether it has
in fact led to any miscarriage of justice or is curable."366
4.4.4.Lltigation and Court Work

Assisting and representing parties before courts of law constitutes the most
obvious task of a legal practitioner. Advocates have the right of audience before
courts of law above Primary Courts, i.e., District Courts, Courts of Resident
Magistrates, the High Court and the Court of Appeal. They may represent
litigants in civil cases,367 or accused persons in criminal cases.368 This is the core
function of the legal profession. 'Advocates' unique right of audience in court
distinguishes them from all other professionals. Their other functions, .such as
conveyancing, etc., are not so exclusive. Court advocacy also stands out for
public scrutiny more than any other task on the lawyer's long list of roles.
Even though the law in Tanzania provides for a right to bail pending
appeal for criminal convicts.P? only represented convicts apply for it.370 Legal
representation thus appears co be of the utmost importance to accused persons
in criminal trials and appeals. As Safari demonstrates, 50/o of convictions are
quashed on appeal. 371 This. shows the extent co which the trial courts can be
wrong, and underlines the necessity for legal representation to assist not only the
accused but also the court in reaching the correct conclusion according to law.
It carrying out his tasks in court, the advocate has toevaluate the various
available arguments, weed out the bad points and retain the good ones. To be
good enough, legal argument must be cogent and compelling. Such systematic
manner of persuasion keeps litigation within sensible bounds and gives
credibility to sound argument.F? Lord Taylor, the Lord Chief Justice.of England,
was recently so impressed by a barrister who appeared before him in a case that
he could not help acknowledging the force of effective advocacy: "It seems to
me that the defence have a very powerful argument which they have put very
powerfully and I decided that not only is it powerful but it is unanswerable.i'F!
Another jrnportant aspect of advocacy relates to the ability to influence people
l66

.167
3(,8

169
.370

m
m
.m

See also Of!la vs. R, {1973] E.A. 277 [KJ on the panmeters of the right to legal
representation. In Nigeria, it has been held that advocacy skills are so important that an
unskilled advocate can cause injustice and render the trial unfair: See Mo1ht1ht General
Merrha1111 Lid. v. Nigtria Stu/ Prodsats Lid. (1987) All N.L.R. at p. 318 .
Order III Rule 1 of the SecondSchedule to the Civil Procedure Code, 1966.
Section 310 of the Criminal Procedure Act, No. 9 of 1985.
Section 368 (1) of the Criminal Procedure Act, 1985 .
Safari, A.J. (1994): Heman Rit.hls in the Criminal Process lllilh Particular &Jirtn lo Tanz.a11ia
Main/afT{J, Ph.D. thesis, University of Sussex, England, at pp. 30-31 (mimeo).
Ibid., at p. 30.
Alexander, Lord (1992), op. dt., at p. 235 .
Per Taylor, L.C.J. Incidentally, the barrister happened to be an African appearing in a case in
the English Court of Appeal.

The Role and Function ofthe ugal Profis1ion

8.5

to one's views. Hence, since people have feelings and emotions, It rs the
advocate's duty to respond to those sensitivities. These skills, and the ability to
argue cases in an interesting and exciting fashion, can only be learnt and
perfected through learning and practice. This is one reason why the presence of
a proficient and experienced person at the side of an accused or litigant becomes
so important.
4.4.5. The Barden ofAdl){),ary

Advocacy carries heavy responsibilities. An advocate has a duty not only to

uphold justice, but also to represent his client. Lord Alexander, himself a lawyer
and barrister, describes the feeling of dependence that a litigant has on his
advocate reflecting on his own experience as a litigant. In the two instances he
found himself a litigant, he was helplessly in the hands of his advocate:
I needed [my advocate's) skill, common sense, courage, tact and articulacy. He was,
in a very real sense, a champion who stood alone for me in answer to a most
important challenge. I have rarely felt so dependent upon any one at any time. In
each case I was immensely well served and felt abundant gratitude ... 374

4.4.6. The UU7tr's Work/Qad

Legal practice is not just a business. It is a vocation which is all-absorbing

and demands total dedication, striving and commitment throughout the duration
of the case or transaction. This requires that the advocate plans his work "in
such a way that he gives his best to his clients without breaking down in the
process." 37s It is hard to measure the total workload of a private advocate.
However, the evidence speaks of a very busy person indeed. This study shows
that the average advocate in Dar es Salaam and Arusha has more than 140
pending cases at any one time. They usually have between two and five cases set
for hearing every working day, sometimes more. Those who do not engage in
much court work have a bigger share of solicitor work. They usually have several
conveyances lined up, legal advice and opinion to prepare, and overseeing
transactions such as sales, bankruptcies, etc.
The data collected in this study further demonstrates that the average
working day of a full-time private legal practitioner is 10 hours. That of counsel
of the Tanzania Legal Corporation and State Attorneys is between 7 and 8
hours. Advocates, therefore, put in more hours into their work than other
lawyers. A good number of them work on Saturdays or even Sundays, while
non-private practitioners do so in extremely rare cases. One explanation for this
could be that there is no particular benefit to the employed lawyer who puts
more than is necessary into his work. The hard worker in central government is
not rewarded in any direct way-not even with overtime allowance. The structure
leaves little room for above-average performance. On the other hand, there is
374

Alexander, Lord (1992),

op. dt., at p. 238.

m Oputa, CJ. (1981), op. at., at P: 137.

Chapter Three

86

direct benefit accruing to the private advocate who spends some few more hours
on his work. He 'is handsomely rewarded in terms of personal income and
professional achievernent.Fs
4.4.1. The Diffennce a er Makes

We have already seen in Chapter One the reasons why lawyers became
more and more important for the colonial administration in Tanganyika. The
conditions introduced by colonialism have continued to exist, and now form the
structure of the modern post-independence State and society. To a great extent,
the lawyer's role is beneficial to not only the individual client, but to society at
large. In his various functions and positions, the lawyer constitutes a vital
component of the modem system of administration of justice.
The then Minister of Justice and Attorney General, Mr. Damian Lubuva
(now a Judge of the Court of Appeal), once said that advocates do help the
Courts substantially in carrying out their work and in seeing to it that justice is
done. The courts and tribunals before which lawyers appear rely heavily on
them. They are expected to co-operate effectively, marshal evidence, shape
issues, and present legal argumenrs.F? In the words of Mr. Justice Mwalusanya,
an advocate " . . . can dear vagaries and inconsistencies in testimony and can
focus the attention of the court on the elements of the offence. the accused is
charged with."378 At Kisuru and Kivukoni.Resident Magistrates Courts in Dar es
Salaam, it was foundthat there was greater possibility for a represented party to
win his case where the other party was unrepresented than lice versa. Out of 50
completed civil case files studied in 1994/95 where one party was represented
and the other was not, 75% of the winning parties were represented, while only
5% were unrepresented litigants winning against represented litigants.379
The competence with which lawyers perform their work for private
persons and organisations can benefit not only the clients involved, but also the
government and society generally. This is not, of course; to say that other
professionals do not play an important role in society. Rather, each and every
one of the many professions and occupations have their own pan to play,
important as any other, in the complex cocktail of human relationships and in
meeting the diverse demands of modern society.

m,

sn
.m
379

As we shall see later onin this work, the busy work schedule of private practitioners (which
is largely a result of a restrictive framework in the law and practice of advocacy), has had a
negative effect on the quality of legal services in Tanzania. The most relevant Chapters in
this respect arc Chapters Four to Seven.
Mfa'!J(lkazj Newspaper, 6th January. 1990 .
Kbassim Mo'!}wtk v. R., op. at.
Another 20% of the cases were either settled out of Court or an tx-pa,te judgment obtained
by default, or completed without a clear winner.

The &le and Funaion ofthe Legal Proftuion

87

4.5. Advocate's Duty to the Court

The advocate's duty to serve his client "to the exclusion of all others" is not
absolute. It is tempered by his duty to the court. In fact, the latter is an
overriding duty which, in appropriate cases, must be observed even at the
expense of his client's interests.P? The duty obligates the advocate never to
mislead or misguide the court. He must also resist all attempts at distortion.w'
He must make sure that the court is made aware of all decided cases on the
point at issue, even though they may not be of assistance to his client's case.382
The difficulties existing in balancing these conflicting duties, may help explain
the cynicism with which lawyers are regarded by the public. But, as argued in
Chapter Two, there is a mysterious cloud of contradictions surrounding this
aspect of the practice of law. Apparently, the public has not been sufficiently
educated on these matters. This is true even in England, where the rules
developed, and where the general level of literacy is much higher than in its
former colonies.383 The problems in the new countries, however, are more
overwhelming. The gap between the profession and the society it is supposed to
serve is even wider in the former colonies. The lot of the lawyer thus becomes
all the more formidable.
4.6. The Duty to be Impartial
Justice Oputa adds one more duty, psychologically related to all the other
duties mentioned above.384 It is the duty to participate and yet not be partisan:
A lawyer should not be personally and emotionally involved in a case he is called
upon, merely, to advocate and not to vouch. It is a cardinal rule that the lawyer
should so conduct himself in the discharge of his professional duties, as to set a
good example of how a man may devote himself unsparingly to the cause he has to
advocate and yet remain in some sense impersonal and an impartial minister of
justice. 3as

How far these duties are discharged in practice is hard to tell. Impartiality
is, however, a goal worth fighting for. A lawyer must at all times distance himself
from the desire to "deliver the goods at all costs". For, in the pursuance of such
a goal, he is likely to lose his self-control and assume overzealousness.w
Lord Diplock, quoted in Alexander, Lord (1992), op. at., at p. 233.
Alexander, Lord (1992), op. dt., at P: 233.
l82 Ronde/ v. Wor.rlry (1967) All ER 993.
383 See Pan.ick, D. (1996), lae. ,it.
.l&4 Another duty mentioned by the learned judge is the duty to keep alive. Amid the
overwhelming pressures of the other duties the advocate owes to others, and presumably
because it has no legal grounding, this duty is usually forgotten. The most important
category of this duty is the duty to keep alive and to make sure that the lawyer does not
over-work himself-by taking a holiday once in a while.
sss Ibid.
sss Sec the discussion on the case of Fronk Mal/ya 11s. Htnry M11shi, op. tit., (item 4.5., Chapter
Two, mpra), where an example of a negative role of a lawyer who became a partisan is given .
3
331

,.

Chapter Three

88

5.

The Rights and Privileges of Advocacy

In the exercise of the right to practise law, the advocate has wide-ranging
abilities and disabilities. Once a person signs the Roll, he is deemed to have been
duly admitted. He becomes an advocate, and assumes all the rights and
privileges of a member of the Bar which the law provides.W But he also
becomes subject to certain responsibilities and disabilities imposed upon him by
the law and the practice applicable to his profession. Some of these are imposed
from without the profession, by legislations made by parliament and subsidiary
law-making authorities, such as the Chief Justice and the Advocates Committee.
Some are self-imposed by the profession itself, mainly through its Council and
the General Meeting. For the purposes of the present chapter, I shall discuss the
tasks, rights and privileges only. The ethical responsibilities and limitations will
be discussed in Chapter Seven.
5.1. Privileges_ Relating to-Communication and Arrests
Advocates' communications between themselves and their clients or -third
parties are privileged.388 The privilege, however, is the client's privilege and .not
the advocate's.P? If the client chooses to withdraw it, the law lifts the protection
granted to the advocate. An advocate cannot be sued for anything he may say in
the course of. a judicial proceeding.P? however malicious or irrelevant the
statement may be.391 The privilege of speech in court proceedings is absolute.392
It accrues to the advocate because it is in the interest of the public as well as that
of his client that the administration of justice should be entirely unfettered by
worries of subsequent legal action based on what the advocate may say in
court.393 Also, an advocate is privileged from arrest on civil process.P" but not
on criminal process.P! This privilege, however, is not absolute. It is part of the
inherent powers of the court, which can grant or withhold it at its d.iscretion;396

l1!7

lM
389
390
l'>l

392
393

See section 40 of the Advocates Ordinance.

Section 34 of the Law of Evidence Act, 1967.
Minter v. Priest (1930) All ER 431, per Lord Atkin. See also R v. Cox & Rm"/ton (1884) 14
QBD 153.
.
The rule covers all actions, and is not limited to cases based on defamation alone: See
Marrinan v. Vibatt {1963} 1 QB 528, (1962] 3 All ER 389 CA, and 11. Pnor (1971) AC 470.
M11n1ter 111. Lamb {1883) 11 QBD 588 at p. 605.
Ca-Portnmbip Farms v. Harwy-Smith ( 1918) 2 KB 405.
Flint vs. Pike {1825) 4 B&C 473 at 480. See also the statement by Brett, M.R., in M11n1ltr v.

Lamb, op. at., at P: 603.

:194

See, Graham-Green, G.J. (1981): Cortiery's Low R.tiating lo Solicilm, 7th ed., London:
Buttcrworths, at p. 6.
Seld(Jn v. Wildt [1911] 1 KB 701, CA at p. 707 and S1011rton v. S1011rton (1963] 1 All ER, at p.

606.
J'.16

Cameron v. Ll1,hljool (1778) 2 Wm Bl 1190; Newlon v. Con1table (1841) 2 KB 701 and Re Hunt
[1959) 1 QB 378.

The &It and Function of the Legal Proftuion

89

5.2. Rights and Privileges by Virtue of Office

Advocates have a right of audience in the Court of Appeal,397 the High
Court and all courts subordinate thereto,398 except Primary Courts.P? Connected
with their right of audience, advocates enjoy the right to enter the courts in
which they are allowed to practise during sittings. However, where the general
public is excluded.S" advocates apparently have no higher rights than the
public-unless, of course, their personal attendance is necessary.'?'
Moreover, advocates have a right co wear robes in court. In some instances,
such as where they attend open court before Judges of the High Court and the
Court of Appeal, -they are bound to do so.402 Advocates are enjoined, when
attending courts of any grade and in chambers, to wear dark suits with white or
light blue shirts and black ties (for men) and dark suits or skirts and white
blouses (for ladies). They also have the privilege, traditionally reserved only for
the Bar and not any other person, to bow to the Bench when entering or leaving
the coun.403
5.3. Disabilities of Advocates
Once an advocate is retained, he enters into a fiduciary relationship with his
client. This relationship imposes special obligations on him.404 He is enjoined, in
his dealings with his client, to observe the utmost good faith.405 When he enters
into a business or financial transaction with a client, an advocate is subject to
several limitations which are not applicable where no advocate-client
relationship exists. These include such obligations as to ensure that the price
given is fair and just, etc.406 Where an advocate is approached for advice or
representation by more than one person, and he sees a potential conflict of
interest between them, he is bound to advise one of them to seek the services ofanother advocate.ff As a commissioner for oaths, an advocate may not

J97
J98

399
400

401
402

403
404

405
406
407

Rule 31 of the Tanzania Court of Appeal Rules, 1979, G.N. 102 of 1979.
Section 40 of the Advocates Ordinance.
Section 33 (1) of the Magistrates Courts Act. 1984.
Such was the case prior to 1980 in proceedings in juvenile courts under the Children and
Young Persons Ordinance, Cap 13. The relevant provision, section 3 (S), was deleted by Act
No. 15 of 1980.
Evmt1 v. L,JJJdham (1831) 5 C&P 91.
According to a member of the Council of the Tanganyika Law Society, advocates must wear
robes when attending Courtroom sessions of the High Court or the Court of Appeal. In
subordinate Courts, advocates must wear dark suits and tics (for men) and dark skirts (for
women). The German Federal Constitutional Court has traced a similar requirement for the
country's attorneys to customary law: BVcrfG E 28, 21.
Rule 11 of the Rules of Professional Conduct and Etiquette.
Noc/on, v. L,rdA.lhb11rton [1914} AC 932 at 952965.
See Wright u. Carltr (1903] 1 Ch. 27 and Noaor v. Lord Ashb11rton, op. at., at p. 965.
See, e.g., RI Ha1/am and Hier EWJnJ [1902] 1 Ch. 765 at 770.
Willi1 Q. Barron (1902] AC 271 at 284.

--,
Chapter Time

90

administer an oath on a document he had himself prepared,408 or which had

been prepared by another advocate who is a member of his.finn.409
There are other rules which limit the advocate's right to represent his client.
They include limitations to the advocate's role as agent and representative of his
client. For example, the admission by an advocate for a client on a matter of law,
if incorrect, is not binding upon the client.41 Furthermore, in the case of The
Manager, Tank Building Contraaors v. R,4'1 it was held that in a criminal trial an
advocate cannot enter a plea of guilty on behalf of an accused client who is
absent in court, unless the presence of the accused has been expressly dispensed
with. However, it was also held, obiter, that except in serious offences, an accused
person may plead guilty in writing and instruct an advocate to appear for him.
The court may enter such a plea as one of guilty.412

5.4. The Monopoly of Law Practice

Professions are characterised by their monopolistic nature. The State.grants
members of a profession exclusive rights to engage in given tasks. Anyone
outside the profession who indulges in such work becomes liable to sanctions. It
is normal for professions to argue that such a monopoly will be of benefit to
consumers and society.413 Of course, this is not always the case. In Chapter
Seven, we shall cover the question of restrictions on law practice by nonadvocates. ln this section, therefore, we shall only look at the privilege of
monopoly that the law vests upon the legal profession.

5.4. 1. The Extent ofMonopo!J

Among factors that make up the monopoly of the legal profession are
restrictions on admissions to the Bar, and the existence of rules of ethics that
restrain lawyers from aiding laypersons to practise law. Apart from court
litigation, it is difficult for the legal profession to enforce its long list of
prohibitions against lay practice. But even the monopoly on litigation is riddled
with several formal exceptions,414 though these are also limited. But in terms
both of its doctrinal scope and the degree of enforcement and compliance,

is

409
4

io

The Notaries Public and Commissioners for Oaths Ordinance, Cap 12. For the rationale
behind this rule, sec the decision of the Zimbabwe Supreme Court in Ma'!)ika v. Manyika
{1983) 2 ZLR 186, at 198, per Squires,J.
For further discussion on this aspect of a practitioner's ethical disabilities, see Chapter
Seven, infra.
P111hpa Raojibhai Patti v. Tht r""/ett Tran1port Co. Ltd. (1960) EA 1025 (C.A).

[1968) E.A. 143-144.

412

See also, on the extent of the sdvocate's ncy for his client, the case of M,Donntl VJ. Kimalli

413
414

[1967) E.A. 702- 713 (C.A.)

Johnstone, Q. and Hopson, D. (1967), op. dt., at p. 196.

For instance, the Magistrates Courts Act permits any person who is employed by a corporate
body (such as a company) to appear and represent his employer in Court.

The Role and Functio of the Ltgal Pnfession

91

lawyers' most extensive and effective monopoly is that of litigation. Here, their
dominance over work before courts of law is almost complete.415

I
.
I

j.

II

5.4.2. Competitionfrom the Unqualified

The major concept upon which lawyers' legal monopoly is based is what is
known as "unauthorised practice", which is examined fully in Chapter Seven .
But there are other matters that contribute towards lawyers' monopoly of the
legal services market. Partly as a result of the acute shortage of lawyers, and
partly because of the lucrative income involved, some of the tasks that
traditionally are performed by advocates are increasingly being done by nonadvocates. It is certain that some of these are, legally speaking, the exclusive
province of advocates. But there are also some grey areas, where the position
may not be very clear. For instance, it has been the practice of the office of the
Registrar of Companies to accept as valid the memoranda and articles of
association of companies attested to by non-admitted lawyers or even lay
professionals, such as accountants and engineers.416 The only document relating
to the legal sphere of companies that the Advocates Ordinance allows to be
prepared by non-admitted persons is a transfer of stock or shares which does
not contain any trust or limitation."?
It would thus appear that the drawing by a non-advocate of any other
document under the Companies Ordinances" for a fee or reward would be
prohibited by law.419 It could therefore be inferred that the practice of the
Registrar of Companies is not technically permitted. But there are many nonadvocates in Tanzania who prepare documents falling within that category, such
as Transfer Deeds for purposes of section 6 (2) of the Land (Law of Property
and Conveyancing) Ordinance.v" contrary to the express prohibition of the
Advocates Ordinance.421 And even though most of them do get paid, they easily
avoid legal implications by simply endorsing the word "gratis" on the
documents, which means the work was done free of charge.

415

416

417

418

m
420
421

For a similar assessment on the US and English Legal Professions, see Johnstone, Q., and
Hopson; D. (1967), op. at., at P: 197. In Tanzania, the privilege is also limited, but very slightly, by allowing some employees of the central and local governments to appear on
beh.a.lf of their employers in Court, whether or not they are enrolled as advocates: See, e.g.,
section 100 of the Local Government (Urban Authorities) Act, No. 8 of 1982.
Personal conversation with an Assistant Registrar of Companies, Dar cs Salaam, 1994. The
Registrar of Companies himself also confirmed this, saying that the signing of the
documents is not an oath and thus witnessing it does not require a commissioner for oaths.
Section 43 (3) (d) of the Advocates Ordinance, Advocates Ordinance.
Cap 212 of the Revised Laws of Tanzania.
This is in accord with the rule of interpretation contained in the maxim txprrssio 1m11S ts/
exrhuio allm11s (the express mention of one thing excludes all others of the same kind).
Cap 114 of the Revised Laws of Tanzania.
Section 43 (3) (d) of the Advocates Ordinance.

\,

92

Chapter Three

5.4.3. The Dangers ojllkgal Practice

As already stated, apart from court litigation, legal prohibitions on
laypersons practising law of some sort are of spotty and limited effectiveness.
Hence, there is already a lot of competition from non-admitted persons. This
competition is bound to increase as restrictions continue to be put in the way of
admitting lawyers to the practising career, while the demand for legal' services
continues to grow. The dangers of such a situation are obvious. Persons who are
untrained in the law find it profitable to enter some comer of the field of legal
practice. 422 Since they are practising either illegally or in grey ar.eas which fall
outside the scope of legal professional ethics, they remain largely, if not
completely, unregulated. The result is a lowering of the quality of services, and a
growing lack of professional care and responsibility.
Such a trend can already be discerned. In one case in the High Court at Dar
es Salaam,423 a senior lay officer of a parastatal organisation was being crossexamined on a Lease Agreement he had prepared. The lease was for a
warehouse. It contained a provision which made it the duty of the lessor not to
disturbthe lessee during the dark hours (in his sleep). Another provision obliged
the lessee to ensure that the flower garden at the front of the premises was well
looked after, including being watered every morning. These provisions may be
normal' in a lease for residential premises, but certainly not for a warehouse! It is
/ -.
"\..--' dear that the officer who prepared the lease agreement did not know what he
was doing. Neither clid he take any proper care in drawing it. It is most probable
that he had merely picked up a lease agreement for residential premises from
somewhere and adopted it, in its entirety, for the warehouse agreement. .
Another example is in the following instance involving p<:rsons who had
no idea what a company was all about but tried their hands at preparing the
memorandum and articles of association of a company. A memorandum of
association is the "constitution" of a company.424 It is therefore the backbone of
its very existence. In the case at hand, a company which was founded with. the
intention of carrying out a chemical and pharmaceutical business had nothing
nearing such an aim in its memorandum of association, which had been drawn
by an accountant. When it wanted to begin business, it was refused a trading
licence because its memorandum did not mention that the company was
empowered to carry on business in chemical and pharmaceutical trade. The
company directors found themselves in a legal limbo.
.
To remedy the situation, they had to apply for an order from the High
Court confirming the amendment of the objects of the company,425 so that they
could be granted trading licence in the branch they intended to carry on
422
42.l

424
425

See, for the situation in England and the US, Johnstone, Q., and Hopson, D. (1967), op. dt.,
at p. 3.
R v. Mwakyoma & J Ors., Economic Crimes Case No. 16 of 1987, H.C.T., Dar cs Salaam.
See Sections 3- 7 of the Companies Ordinance, Cap 212 of the Revised Laws of Tanzania.
Governed by sections 3 7 of the Companies Ordinance.

The Role and Function efthe Legal Profession

93

business. 426 They were lucky to get an order within eight months. Sometimes, it
may take much longer. In this case, thanks to the alertness of the business
licensing office, it was possible to remedy the defect before it was too late.
Sometimes, a lot of damage might already have been done by the ti.me the
anomaly is discovered, such as where the company enters into a business
transaction without having the powers to do so under its memorandum. By the
time the defect is discovered, the damage may well be beyond repair. And one
cannot always depend on the licensing authorities to detect the defects.
5.4.4.

Tackling Illegal Practice

It is clear from the above that in contemporary society, lawyers' tasks are so
many, so diverse, and most of them so fundamental to the functioning of
society, that it is inevitable that other professionals (and even non-professionals)
will want to perform these same tasks.427 Lawyers are therefore bound to have
extensive competition. How they face up to this competition is of the utmost
importance to them, to those they serve, and to the society at large. In the next
chapter, suggestions will be put forward for the introduction of a trained, well
regulated lower cadre into the profession. It is hoped that such a step would
help in reducing reliance on illegal practice and in avoiding the dangers that
result therefrom.

6.

The lawyer in Public Life

Lawyering 'is reputed to be a matter of largely private practice. The practice

of law remains,. nonetheless, very much a public profession.S" Consequently,
lawyers have constituted one of the most active groups of professionals in
public affairs. This section looks at the involvement of lawyers in public life.
6.1. Lawyers and the State
Napoleon Bonaparte did not make secret his dislike of lawyers: "They are
sedition-mongers," he said, "artisans of crime and treason: I wish it were
possible to cut out the tongue of any advocate who uses it against the
Government''.429 But while Napoleon would simply cut out the. tongue of
lawyers, Shakespeare would not stop there. He would have preferred a regime
with no lawyers at all: "The first thing we do", he wrote, "let's kill all the
lawyers."430 In immediate post-independence Ghana, the Judiciary found itself in
open conflict with the executive. President Kwame Nkrumah fired his Chief
Justice and later on the Judges. He dubbed their decisions an open subversion
426

427
428

42IJ

See In the Mal/tr of Mission and SmtittJ Ltd. and the Rt1,iltrar of Companies, Misc. Civil
Application No. 83 of 1994, H.C.T., Dar es Salaam.
Johnstone, Q., and Hopson, D., (1967), op. at., at P' 130.
Cf. Luckham, R. (1981b), op. at., at P: 105.
.
Sire, P. 'The Legal Profession and the Law; the Bar in France', J.J.C.L vol. 1 No. 2, at p.

244.
430

Shakespeare, William, Henry VI, Part II, Act 4, Scene 2.

Chapter Three

94

and treachery against "the working class and their cause."?' How have
Tanzanian lawyers faired with their Government?
6.2. Lawyers and the State inTanzania
Tanzania's Constitutional structure is based upon the principle of
separation of powers.e? Under this set up, each of the three arms of the
government is assigned its own specific functions.w and none of them is
allowed to interfere with the exercise of the functions of the others. Generally,
the Government of Tanzania has respected this division of functions. But there
have been instances where it has shown clear lack of tolerance and
understanding of the role of the Judiciary and the legal process. A few examples
of such instances will suffice.
Like many of the early African leaders, Mwalimu Julius Nyerere, the first
President of Tanzania, believed that the pursuit of development was an
emergency almost akin to war, by which all resources of the country should be
channelled into a common, united effort.434 This is what Shivji called the
"ideology of developmentalism", whereby the leaders claimed that everything
must be sacrificed for the sake of development, and that human rights could not
be realised or should not even be pursued unless and until society achieved the
minimum levels of economic development.P! In Ghana, the general political
climate was so much against the legal profession that the government came close
to regarding it as an obstacle to progress that must be swept away.}6
Not long after attaining independence, the .legislarure in Tanganyika was
used to overrule a court decision and render it practically ineffective. The new
independence Government had abolished the office of Chiefs throughout the
country. One of those affected was Mangi Marealle, the paramount Chief of the
Wachagga of .Kilimanjaro. He thus sued the Government and obtained a huge
'

4l1

Afara Dif,est, 1964 vol. XI, p. l 16 ti 1tq.

432

See the Constitution of the 1977 Union Constitution, and the Constitution of Zanzibar,

See Articles 34, 64 (1) and (2) and Chapter Five of the 1977 Union Constitution.
Nyerere once said in reference to his earlier opposition to multi-partism: "This is our time of
emergency and until our war against poverty, ignorance, and disease has been won, we
should not let our unity be destroyed by a desire to follow somebody else's 'book of rules'":
Nyerere, J.K "One Party Rule" in Sigmund, P. (ed.) (1963): ldeolo!lu of lht Dtwloping Nation,,
New York: Frederick A. Praeger, at p. 201.
Shivji I.G. (1984): "A New Mood of Military in Africa", The Herald (Harue) 7th March 1984,
explains the ideology thus: " ... nothing was to stand between [the leaders) 'and the
development and welfare of their people, not even a Bill of Rights". Nyerere believed,
however, that this was only a temporary though necessary measure, and that time will come
for the full realisation of human rights. Talking abouthisproposal for a single party system
of Government, Nyerere has many times asserted his belief that the system was in no way
superior to multi-partism, and by 1990, he broke the ice for the famous constitutional debate
which culminated in the adoption of multi-party politics in 1992: See Mwakyembe, H.G.
(1995), op. at., at pp. 7 6- 77 and t 53.
Gower, L.C.B. (1967), op. cit., at p. 133.

'

06

1984.

The Role and Function of the Legal Profeuion

95

amount of money as compensation and damages. In a move intended to block

the court order from being enforced, a Bill was introduced in parliament and
passed within a few minutes437 that prohibited any suit being filed as a
consequence of the abolition of the office of Chiefs, the staying of any suit
already instituted, and barred the enforcement of any court decree already
obtained unless the prior consent of the President is procured and upon
conditions he may deem fit to impose.438 This was in clear infringement upon
the functions of the justice system. As Mwaikusa observes, it was disrespectful
to the Judiciary and incompatible with the principle of the Rule of Law.439
On certain occasions, President Nyerere appeared to have lost trust in
lawyers. He is quoted as saying that if rich accused persons were taken to the
ordinary courts, where lawyers are allowed to defend them, the interests of
justice will be defeated. In 1983, the government decided to crack down on
people suspected of doing acts that were sabotaging the economy. One morning
in early April of that year, the police literally went on rampage, ransacking every
buildinl and place where they suspected evidence of such acts could be found.
Businessmen were the most affected. They were rounded up and detained. Then
Nyerere told the nation;
We have a problem on what to do with these people. However, we have not yet
decided on the course of action ... I ask Magistrates to forgive us if we hesitate to
take culprits to courts of law. At times racketeers have been taken to court where
they either receive light sentences or have been set free .... In tb court.r the racktlterr
could use their ill-gotterr money to engage lall(Jm or us that money lo nm/ the law in their
Javour.440

Hence, Nyerere thought that the intrusion of legal technicalities, so beloved

by lawyers, was an obstacle to the pursuit of justice and truth. One member of
cabinet, a Deputy Prime Minister and Minister for Home Affairs, had on a
number of occasions during his term in govemment+' found himself in
confrontation with lawyers. He was fond of instant justice. He paid no respect
for legal procedure. Several times his troubles with lawyers was a result of the
off-handed way he handled matters of legal character. Sometimes, he even
sought to interfere in cases which were subJudice in court.
One of the most dramatic confrontations of recent years between lawyers
and the government was a case involving the Minister and partners of a law firm

417
4l8

439
440
441

Martin. R. (1974): Pmonal Fmdam and tht Law in Tanzania, Nairobi, Oxford University Press,
at p. 57.
The Chiefs (Abolition of Office: Consequential Provisions) Act, 1963, cap 535 of the
Revised Laws.
Mwaikusa,J.T. (1991): "Genesis of the Bill of Rights in Tanzania" 3 A.J./.C.L, at P: 680.
Sec the Dai!J NtwJ (Tanzania) 6 April, 1983, emphasis mine.
The Minister, Mr. Augustine Mrerna, is .now the National Chairman of one of the main
opposition political parties.

96

Chapter Three

in Arusha.ss The Minister had summoned the lawyers, Mr. Joseph D'Souza and
Mr. Colman Ngalo, allegedly for participating in a forgery.'") The advocates
refused to respond to the swnmons. They claimed that the Minister had -no
power to summon them, and denied having committed any forgery. They said
that what they did was perfectly within the law and their powers and duties as
advocates. The lawyers took the matter to the High Court and sought to restrain
the Minister from overstepping his authority. The matter was dramatised in an
extraordinary fashion when virtually all private advocates based in Arusha and
Moshi joined forces behind their colleagues, and decided to form a formidable
team of twenty lawyers, all representing their two learned friends.444 This would
probably have been the largest number of lawyers to represent two clients in the
history of the Tanzania legal profession. However, the matter was later settled
out of court+"
The Minister was also famous for his remarks about lawyers. He was always
in the newspapers, sometimes engaging in sharp exchanges with members of the
legal profession. In one instance, he blamed the then President of the
Tanganyika Law. Society, Mr. Bob Makani, for speaking out against his (the
Minister's) interferences in the workings of the justice system. He called Mr.
Makani's remarks "baseless, irresponsible and selfish." Mr. Makani refused to
respond to the allegations. He said he was not prepared to argue with a layman

See & an Ap;:/jcatio!1 by Co/ma,r Mark Ngalo and Jo1eph Conrad D'So11z.a 111. the Hon. All!,ll!tine
Mm11a, Minzslufor Home Ajfairr, Misc. Civil Application No. 24 of 1992, H.C.T., Arusha. Mt.
Ngalo, however, was of the opinion that, primarily, the matter represented not a direct
conflict between them 'and the Government, but rather between them as members of the
legal profession and "one man who had gone beyond anybody's control", and who had been
"allowed to put into operation his own model of bogaroo courts".
44
3 Sec "I will stand up for Wananchi-Mrc012", the B11Iinm Times (Tanzania) February 14, 1992,
at P: 1.
.
444
See letter Ref. No. AM/92/CK/JD/5 dated 4th March 1992, which was written by
Mughwai & Co., Advocates, on behalf of the finn and 19 other advocates. As Sir Fred
Phillips once said: "our uprit de corps has traditionally been such that whenever a legal
practitioner isin trouble or on trial every member of the profession, and no less the Courts,
view the matter with gravity and concern", as quoted in Adewoye, 0. (1977): Tix u,gal
. Profusion in Nigeria, 1865-1962, Ibadan: Longman, at p. 49.
s See, however, Rweyemamu, R., "Mrema-Ngalo Saga: Is it Really Finalised?'', article in the
column "With a Legal Touch", B11sinm Times, 10th April, 1992 where he expresses
suspicions in the circumstances under which the settlement was reached.' But in my
interview with Mt. D'Sousa and Mr. Nga.lo, the lawyers themselves said the settlement was
reached at a meeting in which the Government had admitted that the Minister was wrong,
and offered an apology through the press. Also, the matter led to other (less dramatic) court
cases, such as ]01tph Conrad D'So111a v. tb Edi/or, Dai.jy New1 & 2 Otbers, Civil Case No. 140 of
1994, H.C.T. Dar cs Salaam (s11bjudire) and ]01tph Conrad D'SouJa v. tb Editor, Uhuru
Nt111 & 2 Otbers, Civil Case No. 40 of 1995, H.C.T. Dar cs Salaam (111b;ildia), in which
M.r. D'Sousa is suing the newspapers for <hmagcs on grounds of defamation.
2

The Role and Function of lhe Legal Profession

97

on matters of the law because "the public may not notice the difference"
between the two of them.446
In another case in Arusha, a Regional Commissioner sought to remove an
advocate from the Roll on the grounds that the advocate was "creating chaos to
the people" of certain villages. The advocate, Mr. Lohay Sang'ka, had written
about ten letters of demand and notices to sue on behalf of his clients. They
were addressed to certain people who were at the time occupying pieces of land
which were originally owned by his clients. The land had been taken away by the
Government in the 1970s as pan of the villagisation programme (known as
operation vijijz) and granted to the new occupiers without legal justification. Mr.
Sang'ka's clients were thus claiming back their land. The Regional Commissioner
was furious about this, and purported to make an order to expel the advocate
from the practice of law. 447
The above instances are illustrative of the inability to appreciate the
constitutional division of functions which vests upon the Judiciary and other
bodies of dispute settlement the power and right to determine matters
concerning the rights and duties of citizens.448 It can only be hoped that as the
country moves further towards constiturionalism and democracy, there would be
greater respect by the executive and legislative arms of the State for principles of
human rights, the Rule of Law and the role of the legal process.
6.2.1. The Rrporl of the Judir:ial System R.tvitw Commission

In 1974, the then Minister for Justice, Ms. Julie Manning, appointed the
Judicial System Review Commission, with Mr. Pius Msekwa as its Chairman.
According to its terms of reference, the Commission was to look, infer alia, into
"whether the struc_rure and the system of operation of defence advocates is
satisfactory and if it is not, what measures are to be taken 'so as to ensure the
provision of better services." After asking itself the question: "The Advocate: Is
He Necessary?" the Commission answered it in the affirmative, pointing out that
446

447

4-43

"Mrema's Supporters Hit at Makani", B,uinm Times, January 3, 1992, P: 7. This was
presumably in reference to a common saying in Tanzania that one should not argue with a
person who is not learned in the subject of the argument, because the people may not be
able to tell who among them is the ignorant party. See also "Makani Defends Corruption in
the Judiciary'', and "His Arrogance Does not Pay" both in Dai!J News (Tanzania), 30th
December, 1991, at p. 5.
The matter led to the case of uhqy Sang'ka 11. tb &gional Commissioner, .Arusba, op, at., in
which the advocate applied to have the Regional Commissioner's act be declared legally
invalid. However, the High Court refused to hear the case and advised the advocate to refer
it to the Advocates Committee. With respect, the High Court decision was manifestly wrong
in law. For, it did have inherent jurisdiction to entertain the matter. That jurisdiction is
clearly lacking in respect of the Advocates Committee (See item 9.2.1, Chapter Seven, infra).
The High Court enjoys supervisory jurisdiction over all administrative organs and
authorities, it can quash any act which is contrary to law, and has powers to issue prerogative
orders to compel administrators to act in accordance with the law: Sec Article 108 (1) and
(2) of the Union Constitution, 1977).
Cf. Nyal.ali, F .L. (199 5), op. at., at P: 3.

98

Chapltr Three

parties to court cases needed the aid of a person learned "in the law. However,
the Commission did not think that it was necessary for this task to be done by
private advocates. Hence, in its report presented in 1977 ,449 the Commission
(hereinafter called the Msekwa Commission) considered, and then rejecred.w a
number of proposals, most of them pleading for the maintenance of private
advocacy.

The Msekwa Commission therefore recommended the abolition of the

private Bar.s1 In its place, it proposed the formation of a Legal Services
Corporation to supplement the services offered by the Tanzania Legal
Corporation.452 While the latter would continue to serve parastatal organisations,
the new corporation would serve individuals in need of legal assistance. In
principle, the Government accepted the Commission's recommendations
regarding the abolition of the private Bar.m This added to the uncertainty that
already surrounded the private legal profession. Aggravation mounted with the
enactment of the Private Medical Practice (Abolishment) Act, 1980. Under this
Act, another private service sector, that of the medical profession, was
abolished.v- Since a lot of parallels have been drawn between the medical
profession and the legal profession, there was well-founded fear that the
government's next move would be to drop the axe on the private Bar.455
The Government, however, did not agree with the recommendation to
establish a Legal Services Corporation. Before taking any further step, it decided
to refer the matter to the Law Reform Commission, which was itself formed
pursuant to a recommendation of the Msekwa Commission. The Lw Reform
Commission's terms of reference included to consider:

me.asurcs [which] should be taken to mould the [legal] profession into an organ of
the people of Tanzania, more responsible and more responsive to the needs of the
public, and whose' functions and system of operation are more and better
understood br the people ...

To carry' out its work more efficiently, the Commission formed "The
Private Practice Reform Committee". Prof. Issa Shivji of the University of Dar
es Salaam was appointed its Chairman. Following the advice of the Shivji
Committee, the Law Reform Commission urged the government not to
Sec Recommendation No. 29 of Tbe M1ekwa C(Jf!lmim'on Rrpo,t (1977), op. at., at P: 313.
so Ibid. Chapter 7, at pp. 147 ti seq.
-'
451
Recommendation No. 29 of The M1ekwa CommiIJion &port (1977), op. at., at p. 313.
m An explanation on the Tanzania Legal Corporation (otherwise known by its acronym, TLC),
is given in item 7.4, Chapter Six, info:,.
449

_.3

-4S4

45!>

Sec extract of a letter from the Minister for Justice to the Chairman of the Law Reform
Commission, dated 17th November, 1983, and quoted in: Tanzania Government, The Law
Rcfonn Commission (1985): "Discussion Paper on Issues on Reform in the Private Legal
Practice in Tanzania", presented by the Private Practice Reform Committee at a Seminar
held at the University of Dar cs Salaam, August, 1985 (mimeo), at p. 3.
Section 3 of the Private Medical Practice (Abolishment) Act, 1980.
See Rwelamira's remarks quoted in the introduction, JllfJra.

The Role and Funaion of the Ltgal Profusion

""

r'

99

implement the recommendation to abolish private legal practice. It was of the

opinion that given the general performance of the public sector and of the
Tanzania Legal Corporation in particular, which had proved to be too
bureaucratic and inefficient. the creation of another parastatal was not the
answer to the problem of the provision of legal services in the country.456
For almost two decades now, there has been no official response from the
government to the advice of the Law Reform Commission. The Bar has had to
live, for quite some time, with the threat of abolishment hanging over its head.
But it is now safe to assume that it has survived the threat. For the time being, at
least, the government is less likely than at any other time since independence to
take such a drastic step. The Union and Zanzibar Constirutions have seen a
number of fundamental changes since 1984 which require more responsible
government and the maintenance of the Rule of Law. The Union Constirution
now contains a Bill of Rights,m and provides for a multi-party system of
govenunent.4S8 A market-oriented economic system has led to a rapid expansion
of the private sector and internationalisation of the economy. These conditions
are conducive to a prosperous private legal profession.

6.2.2. The Dangers ofSheer Expediency

The legal profession is a powerful force for constirurionalism. 4s, By the very
nature of their training, lawyers tend to associate themselves with orderly
organisation in society. They prefer that action, even if it is for change, to be
taken according to law, and by following procedures laid down by law.%0 Hence,
maintenance and respect for law and order is one of the most creditable roles of
the legal profession. However, the discharge of this role entails its own
problems: "The Rule of Law", opines Chief Justice Nyalali, "like democracy
itself, is inherently inefficient. Arbitrary Rule, like Dictatorship, is inherently
efficient. Ironically, the virtues and strengths of the Rule of Law, like the virtues
and strengths of democracy, are in its. inherent inefficiency.t'<' Indeed, the
smooth operation of a situation such as described by the Chief J usti.ce would
have been the ideal situation. But the reality seem to dictate otherwise.
The executive arm of the State has on some occasions come dangerously
close to flouting the Rule of Law, if not completely disregarded it. As a result of
the off-handed way in which he dealt with matters referred to him, the Minister
was considered pragmatic, a man of action who could mete out instant justice
without the usual bureaucracy of government and the cumbersome procedure of
the courts .. However, the dangers of such an approach became obvious in the

4.!i9

Tanzania Government, The Law Reform Commission (1985), op. dt., at P: 19.
See Chapter One of Part III of the 1977 Union Constitution.
Article 3 of the 1977 Union Constitution.
Ghai, Y.P. and Mc.Auslan,J.P.W.B. (1970), op. dt., at p. 381.

4G1

Ibid.
See Nyalali, F.L., "Address at the Admission Ceremony of New advocates", 15th December

456

4s1
4511

""

1992, at p. 7.

Chapter Time

JOO

way some of his "proceedings" were carried out and by their outcome. He was
known to have used coercive. force to extract statements from people who
happened to cross his .path, ranging from coerced criminal confessions to
admissions of civil debts, and even consents to matrimonial divorce.
The problem was further exacerbated by the fact that in most cases the
.Minister did not have the legal powers to do what he purported to be doing.
Secondly, as Minister of Home Affairs he had the force of the coercive organ of
the Police behind him. And there were cases which appeared to indicate that he
did not hesitate to put it into use. Thus, the real consequences of his actions
could very well have been the perpetuation of injustice in the name of
expediency. It also went seriously close to pulling the executive arm into a
collision course with the Judiciary and the legal profession.st
The general public is usually disheartened by the inefficiency of the Rule of
Law. They thus resort to extra-judicial means, some of which are positive and
therefore co be encouraged, some of which are not. In the former category arc to
be found the various forms of mediation and negotiation, in the latter such acts
as those described above. In its extreme form, the pursuance of efficiency and
quick results lead to such abominable acts as mob justice, including the killing of
criminal suspects, etc., in which the public take the law into their own hands.sTh.is is at least a reminder that the system of administration of justice has not
been meeting the expectations of society to the full. It is therefore incumbent
upon lawyers, whether private practitioners or not, to try as far as possible to
eliminate the negative elements chat exist in the country's system of justice, and
prevent recourse to illegal means.

6.2.J. L:z117m in Politics.

Telford Georges, the former Chief Justice, once said that Tanzanian
lawyers have not identified themselves with their country's political struggle.
Teachers have instead been in the forefront of the movement for freedom.
Lawyers and the law have, on the other hand, been closer to the colonial
establishment and efforts to delay independence.e- This.may be quite true. But,
with due respect, the former Chief Justice did not consider the fact that during
the independence struggle, there was not a single Tanganyikan lawyer. At
independence in December 1961, there were only two. Hence, one.could hardly
4G2

<4<>

464

See, for instance, the case of ooe Dar cs Salaam resident (B111iitess Times, Tanzania, 3rd
January, 1992) who was arrested by the Police on orders of the Minister and spent a night in
a police cell before he was taken straight to the Minister the next momirig. He was then
forced to sign an "agreement" to pay "compensation" to his wife for a divorce which had
been granted in a Court of law. Worse still, the wife had filed an appeal for such
compensation which was then still pending in the High Court. The husband later refused to
abide by the agreement, claiming it was obtained through coercion and in utter disregard of
the process of the Court.
See, for instance, the Sim'!) News (Tanzania) 2nd April, 1995.
Georges T. (1972): "Responsibilities of the Bar", in James, R.W. and Kassam, F.M. (1972),
op. cit., at p. 104.

Tbe &It and Funaion oftht Ltgal Proftuion

101

have expected Asian and European lawyers to have identified themselves with
the Africans' struggle for independence.s= And as argued in Chapter One, this
starvation of lawyers in Tanganyika was mainly due to a deliberate policy of the
colonial regime.
Law is inherently a political matter. Hence, as expected, lawyers in the postindependence period have played their part in Tanzania's political scene. A
number of lawyers have entered the political arena. We have already seen that a
good number of early graduates from the Dar es Salaam Faculty became
members of the State cabinet. One of them occupied the second most 'powerful
post in the Government as Prime Minister and First Vice-President. Thus, the
country's lawyers have been very much the political animals lawyers are believed
to be. One of them became a member of parliament only a year after completing
his law degree programme. One advocate took advantage of the fact that he was
the advocate of retired President Nyerere to win a seat in the ruling CCM Party's
powerful National Executive Council.s- That trend has gained even more
momentum in the present multi-party era. One of the major political parties in
the country, NCCR-Mageuzi,467 is led mostly by comparatively young practising
advocates.
In the last Presidential elections in 1995, three lawyers ran for nomination
as presidential candidates for the ruling Party.468 Some advocates entered politics
to the detriment of their law practice. One young Magistrate at Kisutu Court in
Dar es Salaam was compelled to "advise" politically active advocates to "choose
between politics and advocacy", noting that they could not serve two masters at
the same time. Such advocates not only had less and less time for law practice,
but some of them found that they were losing clients who did not subscribe to
their political leanings. One law firm in Dar es Salaam, for example, broke up
into two because some of its members did not agree with one of their
colleagues' political activities. Some of these advocates have had to pay great
sacrifice, since disenchanted clients were compelled to seek other lawyers after
realising that their lawyers were paying little attention to their duties as
advocates, and concentrating on politics instead.

465

466
,4(,7
,4(,8

It must be noted, however, that some of the non-African lawyers did in fact support the
nationalist struggle. Mwalimu Nyerere's advocate during one of the cases that had been laid
against him during the period was an Asian lawyer, Mr. Mahmoud Rattansi. This is however
subject to the qualification that the advocate would have been obliged to represent him
notwithstanding his opinion about his client's political activities. However, it can reasonably
be inferred from subsequent events that the advocate at least held sympathetic views
towards his client's political leanings, as he was, after independence, appointed an
ambassador, a position he held continuously for about two decades until his retirement.
Sec ''Wakili wa Nyerere Aingia NEC", Mfanyaka, 23 May 199 5, at p. 1.
"NCCR" is short form for "National Convention for Construction and Reform".
These were: Former Prime Minister and First Vice-President Joseph Warioba, Justice of the
Court of Appeal Mark Bomani, and Ambassador Frederick Rutakyamirwa (all of whom arc
advocates and have at some point actually practised law).

Chapter Tbree

102

In this connection, the Law Society should, as a body representing lawyers,

be 'more active and outspoken in matters concerning the rights of citizens. This
is in fact one of its most important duties under the law.469 There have been of
late some bold attempts by individual advocates to take matters of high political
interest to the Courts. But the Society has not been backing this up with its own
stand on political matters. And where it has done so, these have been few and
far between. The Law Society of Kenya provides a good example of an active
Bar. It has been most active as a constructive critic in matters touching upon the
society as a whole, and in educating the public about their legal rights. It has a
monthly publicationw which acts as a forum for the legal community in this
regard. It is also to be hoped that once the Tanganyika Law Society becomes
more active on social issues, the government would accord lawyers more
respect, and grant them due consideration befitting a body of skilled
professionals whose business it is to work with the law, and upon whom the law
has imposed a duty to speak out on matters of legislation and citizens' rights.
6.3. The Independence of the Legal Profession
6.3.1. General
Society has long accepted the independence of the Judiciary as an
important element in the fair administration ?f justice.f" This pnciple has been
further extended to include the doctrine of the independence of the Bar. as an
integral part of the independence of the Judiciary. Partly because of its role as
defender of those who find themselves in trouble with the law, the legal
profession need to be free from the pressures of the executive and the
prejudices of society as a whole.
6.3.2. Independence of the Bar
The duties of an advocate thus bring to the fore the importance of a
fundamental ingredient of a just society: the independence of the Bar.472_ It has
been argued that such independence is.important if the advocate is to be able:
46?

47o
471

472

Section 34 (c) and (e) of the Tanganyika Law Society Act, Cap. 307.
The Nairobi l.AW Month!J, published by the Kenya Law Society.
See the Preamble to the Union Constitution, and Article 4 (1) and (2) thereof.
Cf. the German position in sections 1 and 2 BRAO and Article 74 (1) of the Basic Law
(Constitution) of the Federal Republic of Germany, which expressly recognise the private
attorney (&chtsa111Jl(J/I) as an "independent organ of the legal service", practising a free, noncommercial profession. As for Notan (whose tasks arc similar to notaries public and
commissioners for oaths in the common law system), they are referred to, under section t of
the B1mdunotarorrin11n1. (BNotO) (Federal Law of Notaries). as "independent bearers of a
public office". There is still a controversy, however. over whether Notaren also form 2
profession which enjoys the same level of freedom as &chtsa11111ii/te,r. See Kart. F., (1972):
&chi derJuristischtn Bmlft. Munich: Wilhelm. at pp. 67-68, where he discusses the discrepancy
caused by the "legal concept of the free profession" for Notarrn and the decisions of the
Federal Constitutional Court in BVerfG E 16, and 6; 17, 371, which the court could not
convincingly resolve in BVerfG 10, 364.

The Rolt and Function of ihe ugal Profession

103

to resist all pressures in an unpopular cause, and to present the case without fear or
favour. Without this independence, there would be no effective Rule of Law, and
the basic duty of the advocate to protect the rights and liberties of the citizen could
not be fulfilled:47.l

Professional independence, of 'course, docs not mean that the profession

should be wholly free from controls. That kind of situation would itself be
essentially defective. There is thus a need for a system regulating the workings of
the profession, just as in any other profession. There must be a body of
professional ethics, an effective procedure for the enforcement of discipline, a
mode of qualification, etc. But within such framework it is extremely .important
that the profession, and the individual professional, should be independent:
One of the essential reasons for our existence is to uphold the human rights of
people, and often these have to be upheld against the state. To do this effectively,
the profession must be as independent as possible against the state. Th.is principle
does not exist for the convenience of lawyers. I c exists for the benefit of society as a
whole, and needs to be widely emphasised by the profession and by government if
the freedoms important to a democratic society are to be sustained.474

In Tanzania, the independence of the Bar has not been a very topical
subject. It was, however, called into question in the case of Seif Shariff Hamad v.
Serikaiiya Mapinduya Zanzjbar. 47' Mr. Hamad, a former Zanzibar Chief Minister
who later became the most popular opposition political figure in the isles, was
accused of being found in possession of government secrets. The case was
highly charged with political emotions. There has been no concrete evidence of
interference, but eyebrows were raised when the accused's first advocates from
the University of Dar es Salaam Legal Aid Committee were forced to withdraw
their services . under questionable circumstances. The suspicion continued to
vibrate until the case reached the Court of Appeal, which discharged the accused
on a number of grounds. By this time, Mr. Hamad had hired the services of a
total. of six lawyers to defend him, four of them having withdrawn during the
pendency of the case.

6.4. The Lawyer's Wider Role in Society

The nature of lawyers' training and thetasks they perform places them in a
unique position in society. Perhaps more than any other profession in modem
history, lawyers have been .the most influential group. The ordinary person looks
upon the lawyer not only for guidance on the law, but also for many other social
problems. He is also a critic and a reformer.Fs That is why the importance of
this body of men and women will continue to exist, at least in the foreseeable
future.
n

Alexander, Lord (1992); op. at., at p. 233.

Ibid.

41s Criminal Appeal No. 171 of 1992, C.A.T., Zanzibar.

476
Karl, F., (1972), op. at., at P: 55.

104

Chapter Three

The former President of Zambia, Dr. Kenneth Kaunda, sees the law as
"perhaps the most important of all instruments of sociaJ order". Without' it, he
says, the whole structure of society will inevitably break down: "It is the means
by which order within society is maintained and society itself preserved't.e?
Kaunda sees the lawyer's role as mainly two-fold: first, as a technician, and
secondly, and more importantly, as a social engineer. To him, the lawyer is better
suited perhaps than anybody else "to work out the solutions to the social and
economic problems of society". The lawyer's sociaJ duty is even more
pronounced in a developing country, where only a few have been fortunate
enough to be educated, let alone professionally qualified. The lawyer is dutybound to use his knowledge and skill not only for the benefit of his client, but of
society as a whole: " ... he must be something more than a professional man; he
must be even more than the champion of fundamental rights and freedoms of
the individual. He must be, in the fullest sense, a part of the society in which he
lives and he must understand that society if he is to be able to participate in its
development and advancement of the economic and social well-being of its
members." As Gwer puts it, he should be more than a journeyman
practitioner."!
.
This leads us to another important question on the lawyer's role: Whether
the legal profession can play a part in solving certain sociaJ problems, such as
poverty and disease. While it cannot-be denied that the profession can very well
influence matters in these areas, their effect is certainly a very indirect one. It is
the kind of role which is hard to measure with precision. However, the
profession can definitely contribute to the promotion of some of the most
importantinfrastructure in a: reasonable society: the maintenance of the Rule of
Law and constitutionality, justice and equality. In so doing, it will 'be providing
society with an environment necessary for the full" realisation -of its other
endeavours. Just like the' umbilicaJ fluid does not make a baby healthy, it
facilitates its overall well-being by providing it with the necessary atmosphere
without which its growth would be severely endangered. The role and function
of the legal profession within the legal system must be seen within a similar light.
As Attorney GeneraJ Chenge puts it:

Laws make possible the existence of organised society, with the consequential
release of human energies for constructive efforts in the satisfaction of individual
and group needs of society. A peaceful and harmonious living in any society implies
the systematic promotion of fair and just treatment of individuals and groups within
it, the protection, of conduct. consistent with, and the punishment of conduct
inconsistent with, the declared interests and values of society as well as the existence
of a justice system by which the problems of individuals and groups are resolved

-m
478

Kaunda, K. (1971): "The Functions of a Lawyer in Zambia Today", vol. 3, No. 1 'Zambia.

.
.
Gower, L.C.B. (1967), op. at., at p. 102.

LJ., p. 1 at p. l.

The Role and Funaion of the Legal Proftssio11

105

peacefully. Law is therefore at the heart of the methods by which society meets these
needs. And so is an advocate. 419

Apart from the above, a profession is obliged to educate the public on

issues touching upon their area of expertise. Legal professionals must be in the
forefront in debates on law reform. They must also truly reflect a desire to help
society in solving the problems that their training enables them to.480

7.

Concluding Remarks

It has been argued in the foregoing that the advocate's work includes
functions that go well beyond court advocacy. Among his other duties, the
advocate plays the roles of, inter alia, advisor, conveyancer and agent.481 In a legal
system where the law is scattered in fragmentary pieces of statutory law, case
law, etc., the involvement of a lawyer is usually irreplaceable. He is the person
charged with the task of bringing together the various pieces of the puzzle that
makes up the entire legal corpus. That needs a legally trained and experienced
person, one who makes the business of the law his personal business.
Otherwise, there is bound to be maximum chaos in the system, with consequent
confusion and inconsistency. In his non-litigious roles the lawyer can facilitate
the attainment of several purposes: Safeguarding social justice by advising
against actions that could lead to disputes; providing the means to economic
stability and equanimity by supplying the necessary lubricant for the smooth
operation of business and other civil transactions;482 actualising the prosperity of
the Rule of Law and democracy by ensuring that public affairs are carried out in
accordance with the country's laws and Constitution.
Foremost among the many roles of the legal profession is presumably to
ensure that equity and justice-the most important purposes of the Rule of Law
and constitutionalism-are jealously guarded and preserved. To be able to carry
out its role as an effective pressure group for constitutionalism and the Rule of
Law, the legal profession must ensure the existence of two essential prerequisites

479
480

481

482

Chenge, A. (1995), op. at., at P: 6.

lmanyara, G. (1993): "The Role of the Mass Media and Legal Institutions in Educating the
Public on the Rule of Law", Paper presented at the Workshop on the Role of.the Media and
Legal Institutions Under Democratic (lunges, Arusha, 28th-29th June, 1993 (mimeo).

Sec Chroust, A. (1965): The Rirt of tlx LJ!fll Proftmo11 i11 Amtrita, vol. I, Norman: Univ. of
Oklahoma Press, at pp. xi-xiv.
In his 1980 Fletcher Lecture, Sir John Donaldson said, in reference to in-house lawyers for
business enterprises: "It is too late to call in a lawyer when things go wrong. He should be
integrated into the system so that he might detect legal problems before they developed. A
familiarity with the problems of management would also enable a lawyer to seek a solution
more in harmony with the long-term interests of the enterprise. The analytical and logical
mind of the lawyer {is usually] handy even for purely managerial decisions". See Hermann,
A.H. (1983): Judges, Law and tbe B11si11t1Jman (Antwerp: Kluwer), at p. 45.