SPEECH DELIVERED DURING THE ADMISSION OF NEW ADVOCATES AT THE KARIMJEE HALL, DAR ES SALAAM BY HON. PROF. IBRAHIM HAMISI JUMA, CHIEF JUSTICE OF TANZANIA ON 15 DECEMBER 2017
Honorable Justices of Appeal,Honorable Principal Judge,
Honorable Attorney General,
Honorable High Court Judges,
Honorable Retired Justices of Appeal and Judges of the High Court,
Honorable Chief Registrar, Registrars, Deputy Registrars, Magistrates and Court Administrators Present,
Director of Public Prosecution,
Honorable Ambassadors present,
President of the Tanganyika Law Society,
State Attorney and Advocates,
Leaders of Political Parties and Religions Denominations,
New Advocates,
Press,
Distinguished guests,
Ladies and Gentlemen,
On behalf of the Judiciary of Tanzania I am delighted to welcome you into the legal profession and to say CONGRATULATIONS.
15th December, 2017 marks an important milestone for you. Your names are finally in the Roll of Advocates with certificates authorising you to practise law within Tanzania. It is a special day for universities law faculties which introduced you to the ABCs of Law. It is a special day to the Law School of Tanzania which added onto your legal knowledge the practical skills and the formalities of the law. It is also a special day for us at this side of the high table, because the Judiciary and legal fraternity is now strengthened by the addition of the new crop of the officers of the Court.
No one person amongst you can claim that he or she climbed the ladder to success without a helping hand from a known or unknown person. There is a saying, attributed to Bernard of Chartres that:
“We [the Moderns] are like dwarves perched on the shoulders of giants [the Ancients], and thus we are able to see more and farther than the latter.”
This is a good moment for each one of you, to reflect back and thank God and thank also every person on whose shoulders you climbed to reach the summit where you are now standing. Your families, friends, colleagues, lecturers— have shaped and made great contributions towards your destinies to become advocates. I would like to congratulate all those who have been part of your long walk to become Advocates.
It took me a while to determine what advice I should give to a group of enthusiastic and relatively youthful Advocates who are destined to practice law in the 21st Century which began on January 1, 2001 and is scheduled to end on 31st December 2100. There is great potential from your youthful vitality because a total of 285 out of 296 new advocates admitted to the Bar today are below forty (40) years of age with over 20 years of legal practice ahead. A total of 181 amongst you, are below thirty (30) years of age which translates to over thirty (30) promising years ahead for legal practice in 21st Century. If your young age is to go by, we can project that the future of the administration of justice, Rule of Law and of the legal profession of the 21st Century Tanzania, rests on your youthful shoulders. Begin to practice responsibility now, because responsibility to shoulder the system of administration of justice ahead of you is heavy. There is a saying, planning is good, however preparation, is even better. Plan now to take over the legal profession and administration of justice. Prepare now to make the legal profession and entire justice system even better.
In the spirit of the words— planning is good, preparation, is even better — I wonder whether any one amongst your group has taken a few moments to reflect how legal practice and legal profession will be in the next twenty to thirty years to come. As a country, Tanzania has at very least projected how Tanzania should be in 2025. When he was fore-wording the Tanzania Development Vision 2025, the third President of the United Republic, H.E. Benjamin William Mkapa, recognized that Tanzania should be prepared to face a world that is highly competitive in 21st Century:
“We are standing at the threshold of the 21st Century, a century that will be characterized by competition. It is clear, therefore, that it will be a century dominated by those with advanced technological capacity, high productivity, modern and efficient transport and communication infrastructure and, above all highly skilled manpower imbued with initiative. If we are to be active participants in the global developments of the twenty-first century we must, as a Nation, find ways of improving and strengthening ourselves in all these areas.”
While the retired President Mkapa was of course speaking about Tanzania as a whole, he may as well be speaking to you today as you enter legal practice in Tanzania of 21st Century. If you want to survive in the competitive legal profession, you must possess not only competitive legal skills that can match any legal skill in the world, but you must also be imbued with initiatives and frontier-breaking ideas.
My first piece of advice for you young Advocates entering legal practice in this Century is to continue learning both the law and the context within which the law you practice operates. That context may be local, or national, regional or even global. Do not scratch the surface of the laws only, as most busy lawyers today may be predisposed to. Laws have deep roots embedded in the history, geographical position and social-economic aspirations which people have. You must keep yourselves abreast changes taking place both on the surface of the law, and also into the deep roots of the laws which you will apply. Always remember, legal practice will not assess you on the basis of the certificates showing the grades you scored at universities and professional law school. Certificates and grades will not solve the day to day legal issues facing your clients. Legal practice and profession will expect you to prove that you deserve what appears on your certificates.
My second advice; continue to sharpen or hone your legal skills. Legal skills are at the heart of the profession. You are entering a phase where you will put into practice the skills you were taught at universities and at the Law School of Tanzania— how to think, act and communicate like a lawyer. You must continue to add value to your legal skills and personal experience by learning from the experience of the Senior Counsel. Justice M. Jagannadha Rao1 of the Supreme Court of India, in a paper titled: “Law Students, Lawyers and Judges in the New Millennium” pointed out that experience transmitted from our seniors to us, saves us time we would otherwise spend to acquire these skills. He advised that it requires great patience for young advocates to observe the skills of expert lawyers and emulate and practice those skills. He asked how many young lawyers of today are prepared—after their work in the court room is over early, to sit in a court room and observe the way any senior lawyer or good lawyer is arguing in court or the way any Judge is proceeding with the case? You should be prepared to sharpen your skills by sheer personal hard work and observation of senior counsel.
We all hope you are all good Advocates who will continue to build on the basic legal skills you now have. Again, Honourable Mr. Justice M. Jagannadha Rao2 sees close correlation how good LLB Degree products,
1 Justice M. Jagannadha Rao, “Law Students, Lawyers and Judges in the New Millennium,” (2000) 8 SCC (Jour) 1.
2 Justice M. Jagannadha Rao, “Law Students, Lawyers and Judges in the New Millennium,” (ibid).
lead to good members of the Bar, and ultimately becoming good judges, when he suggested:
“…’Basic Structures’ of good legal practice/Magistracy/Judgeship is at universities or ‘law students.’ If the law schools maintain good standards and produce good students, the newcomers will first improve the Bar. A good Bar will obviously produce good Judges at all levels.”
We all hope your admission today brings nothing but good and adds value to the legal practice in the administration of justice in Tanzania.
Third advice, prepare to practice your legal skills both within the Tanzania and also outside Tanzania. You will face legal challenges that transcend national boundaries, which will require you to apply transnational legal solutions. Your university education (LLB) and the practical legal training at the Law School of Tanzania prepared you to practice law within the national boundaries of Tanzania. The reality of your legal practice you will face, will call you to prepare to face regional, international and transnational civil and criminal matters which go beyond national laws and procedures. Boundaries of the practice of law are shifting much further from the national settings.
The extent legal practice is moving beyond national frontiers was captured by Kimberly Prost3 who gave examples of how successful prosecution of certain serious offences like drug trafficking, economic crime and money laundering is increasingly dependent upon the assistance and cooperation of other states. This author is certain that international cooperation in criminal matters has on a practical level, come of age. She elaborated that international cooperation in criminal matters encompasses many measures including extradition, mutual assistance, and transfer of sentenced prisoners, transfer of proceedings, and cooperation in the restraint and forfeiture of proceeds of crime. As new Advocates, you will play prominent roles in the increased regional and international trade and investments.
There are new evident frontiers where your legal practice is already moving to. There are laws in Tanzania which confirm that legal practice is moving fast into new areas of practice. The Electronic Transactions Act, 2015, [ACT NO. 13/2015 has formally recognised validity of electronic transactions, by formally accepting the use of ICT in collection of evidence, and allowed the use of secure electronic signatures. You will need new legal skills and practice when dealing with offences under
3 Kimberly Prost, “Breaking Down the Barriers: Inter-National Cooperation in Combating Transnational Crime.”
the Cyber Crimes Act, 2015-ACT No. 14/2015. This law has created a horde of offences committed digitally through computer and ICT systems. As practicing Advocates, you will ask Judges and Magistrates to rule on the admissibility of electronic evidence. The way you will rely on this type of evidence will substantially impact the outcome of a suit or criminal case you are handling. You will have to assist in the determination whether any given electronic evidence was fabricated or falsified.4
It seems, the sky is no longer the limit for legal practice in the 21st Century. Other jurisdictions have taken legal practice deep into the space. The Website of Homeland Security of the USA provides the following indicator of where legal practice has reached:
“…our daily life, economic vitality, and national security depend on a stable, safe and resilient cyber space. Cyberspace and its underlying infrastructure are vulnerable to a wide range of risk stemming from both physical and cyber threats and hazards. Sophisticated cyber actors and nation-states exploit vulnerabilities to steal information and money and are developing capabilities to disrupt, destroy, or threaten delivery of essential services.”
4 Neeraj Aarora, “Admissibility of Electronic Evidence: Challenges for Legal Fraternity,” Posted on March 10, 2015.
Because you are the future of legal practice of Tanzania, you should not rule out your practice the cyberspace is no longer the limit, be prepared to practice in the Cyberspace.
My fourth piece of advice to you is that the new Advocates should get ready to collaborate with other professionals like the ICT professionals. You are likely to face situations where your application of relevant laws depends on thorough understanding of facts on non-legal matters which require other competences not possessed by Advocates. You must be humble enough to realize that there are many areas of competences which are outside your own competence and skill, but which are well within the reach of other professionals with whom you can collaborate. A successful Advocate of 21st Century will not over-dramatize his belonging to the noble legal profession. He will acknowledge his own limitations, and accept what other professions have to offer.
My fifth advice also relates to the need for new Advocates to understand concrete situation existing in Tanzania where— millions of Tanzanians live in poverty in the rural and peri-urban areas of Tanzania. Most of the poor are women and the vulnerable groups who do not enjoy access to justice. You must also take into account that majority of
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courts, the Judges, Magistrates and Advocates, are concentrated in few urban areas. You must not forget that the poor who require your legal services do not have the financial means to pay you. Most also may not understand how the justice system operates. These citizens look up to the LAW and JUSTICE system with high expectations of taking them away from their poverty by advancing their welfare.
Through the Judiciary Strategic Plan 2015/16—2019/2020 built on Citizen-Centric reform approach, the Judiciary of Tanzania has taken seriously the question of access to justice especially by the poor and the vulnerable. You must work closely with the Office of the Attorney General, Legal Aid Providers, the Judiciary and the Ministry of Constitutional Affairs and Justice, to extend legal aid to the poor, women and other disadvantaged groups.
You should agree with the statement that law and legal profession is much more about service, and much less about advocates’ fees. In her Welcome Remarks to new Advocates called to the BAR at the Washington Supreme Court, SEATTLE, Justice Mary E. Fairhurst insisted that legal profession is not about “fees, fees, fees.” Legal profession is about service and responsibility to serve. She urged new Advocates to ensure that justice in every case is realized, realized within the shortest
possible time and at the lowest possible cost. This is a challenge to not only the Judiciary of Tanzania, but, to Advocates, State Attorneys and litigants as well.
My sixth piece of advice is urging you to be custodians of justice, who take action instead of complaining and blaming. If you see justice is not being achieved, do something about it. When the public repeatedly sees the justice system not delivering properly, the people’s confidence in the law will soon decline. If you see the legal system faltering, propose changes in the laws or changes in the rules.5 Do not sit back to complain and blame. Contact the Office of the Attorney General, Law Reform Commission etc. In case you have proposals to amend Rules and Regulations governing administration of justice, contact the Chief Justice’s Rules Committee (JRC), which was appointed to specifically conduct comprehensive studies of all statutes which empower the Chief Justice to make Rules and Regulations, and forward recommendations for reforms. This Committee has recommended several new Rules and Regulations; some have been promulgated into law. You should be part of the dynamism of the Law as it shapes our society to prosperity.
5 Justice Mary E. Fairhurst, Washing Supreme Court, (supra)
The need to operate your legal practice within the bounds of the rules governing the ethical conducts of Advocates is my seventh advice. There are widespread complaints that some Advocates are not only unethically corrupt, but are active agents of corruption linking up the judicial and non-judicial officers with corrupt litigants. There are complaints that some Advocates go an extra distance to charge extra fees disguising that a portion of that fee is to hand over to judges or magistrates handling their cases.
You should help the judiciary to eradicate corruption from the judiciary. We shall be following every reported case of corruption and take appropriate action. We encourage all law abiding citizens to report corrupt practices to relevant law enforcement organs. Judiciary has no room for corruption.
My eighth advice is, use your legal skills to expedite resolution of cases but not to foster delays or to procrastinate the dispute. Today you are joining legal profession which has often-times been described as a noble profession. But, the nobility of the profession will in great measure depend on the level of trust which the citizens have on the Advocates, State Attorneys, Judiciary and entire justice system. Remember, trust is gained slowly, but lost quickly. How advocates effectively and diligently
exercise their legal skills to expedite resolution of cases, builds and enhances trust in the justice system. Nobility of the legal profession will also in good measure depend on how Advocates live and remain within the ethical boundaries of the legal profession, and eradicate corruption from your midst. In collaboration with the Attorney General and the Tanganyika Law Society, Judiciary is determined to strengthen Advocates Committee which is chaired by a Judge of the High Court and the Ethics Committee of the Tanganyika Law Society.
The first step you should take to remain within the ethical bounds of your legal profession is to familiarise yourselves with sections 4 and 69 of the Advocates Act, Cap 341 which establishes, and gives the Advocates Committee, with the approval of the Chief Justice, powers to make regulations on several matters that affect your practice. These include the keeping of accounts by advocates;6 specifications of acts or omissions which constitute misconduct on the part of an advocate;7 and etiquette and decorum expected of advocates.8
The Chief Justice has already approved The Advocates (Professional Conduct and Etiquette) Regulations, 2017, which we hope the Office of the Attorney General will forward for publication
6 Section 69 (a).
7 Section 69 (b).
8 Section 69 (c).
and printing before this year ends! These Regulations are important because they set out principles and standards necessary for proper and efficient administration of justice.
There are complaints levelled against Advocates. During the course of this year (2017), the Advocates Committee concluded a total of twenty five (25) applications (complaints) against advocates. Two advocates were found guilty. Four were acquitted, while two applicants withdrew their complaints. Seventeen (17) applicants failed to appear forcing the Committee to dismiss their complaints. The nature of complaints against advocates which you should guard against included:
i. Breach of duty of confidentiality.
ii. Forgery.
iii. Failure to represent the client even after receiving payments.
iv. Prepare two agreements for same transaction.
v. Representing a client in court without proper instructions from the concerned client.
vi. Poor representation leading to the loss of the case
vii. Defrauding the clients.
viii. Representation a client in a matter where the advocate has personal interest.
ix. Negligence in performance of duty.
x. Pursuing a bill of cost without instruction of the client and taking the client cost awarded.
Remember ethical Advocates strengthen the independence of the Judiciary. Independence of the bar without systematic mechanisms to enforce its own accountability will undermine the very basis of that independence. As part of accountability, from 2018, the Judiciary will establish a special electronic data base. The data base will contain such essential details of advocates, as their law firms, physical and postal code addresses. These details will facilitate the sharing of information and communication. I have also directed the Council for Legal Education and the Judiciary, that by December 2018, every practicing Advocate shall carry special identity cards which will recognise his or her status. We cannot afford another incident when any person can masquerade as an advocate and make appearances in courts. The identity card will not only facilitate entry into court buildings, but will also recognize their respective practice status.
Apart from improving your legal profession individually, you should not forget the important role which your professional body, the Tanganyika Law Society (TLS) plays. Apart from guiding you on matters of ethics and Continuing Legal Education, TLS links you up with law
reform initiatives. It has rightly been suggested that the obligation which Advocates have towards the Court (as officers of the Court), towards their professional society (TLS) and towards the fidelity of the law, is what makes legal practice a profession and not a business.9
Remember, payment of your annual practicing fees is a precondition before you take up practice. For those seeking to employ foreign Advocates, they should comply with all the laws of Tanzania that are applicable.
I would like to end by reiterating the very many years of legal practice ahead of you. You must take it as a great privilege to join the practice of a noble profession as law. As the old adage goes, privilege to practice legal profession comes with heavy responsibilities towards the court, your clients and public at large. Since law cuts across all human activities upon which an orderly, peaceful and prosperous Tanzania is to be built, it is a privilege to be at the centre of legal practice. You can make LAW work for public order, political order, social order, economic order, international order and even moral order of an orderly Tanzania. I would like to wish you prosperity and success in your legal practice.
I wish you a Merry Christmas and Prosperous New Year!
Arthur T. Vanderbilt, “The Five Functions of the Lawyer”.
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