By Dr Masimba Mavaza | The Law Society of Zimbabwe (LSZ)enjoys unfettered authority as the sole body regulating the legal profession in Zimbabwe. There are arguments that the law which established it is against the constitution.
Joshua Chirambwe, a Zimbabwean lawyer opened this issue to the public debate after he brought the LSZ to the High Court seeking a declaratory relief that sections 58, 64 and 65(1) to (5) of the Legal Practitioners Act are invalid and in violation of the constitution.
The Legal Practitioners Act requires one to be first a member of the LSZ before they are registered by a judge of the High Court and admitted as a lawyer.
Chirambwe argues that this is unfair because the constitution gives everyone the right to associate with organisations or groups of choice.
“The right of freedom of association is violated when money is taken from non-consenting legal practitioners as LSZ dues without giving them a choice to get a practicing certificate without paying such money.
“In further violation of the right to freedom of association, funds taken without one’s choice under section 74 are used to fund the LSZ’s activities.”
Chirambwe says the issuing of practicing certificates by the LSZ weakens one’s independence in the profession.
“In order to practice as a legal practitioner, one requires a practicing certificate. By law, this certificate is issued only by the LSZ. In terms of section 8 of the Act, all privileges that accrue to being a legal practitioner are dependent on having a practicing certificate,”
“… continued membership in the LSZ in its incarnation as a trade union is not by choice but dependent on one being registered as a regulated legal practitioner. The freedom to join trade unions in section 65 of the constitution also means the right to choose to leave. The Act also effectively… makes it impossible… for one to make that choice now and decide to no longer be a member,”
“It is my view that professional regulation should be professional. This arrangement is not.” The minister of Justice cde Ziyambi Ziyambi had previously said “They have converted themselves into an activist lobby group. They no longer know why they exist, they have lost their bearings.” He was talking about the law society.
-In relation to legal practitioners, the Law Society has, on the one hand, a relationship that is akin to that of a trade union and its members. On the other hand it purports to act as a regulator and a disciplinarian of the same members. The two roles are mutually exclusive of one another and inherently contradictory to one another.
The very members of the Law Society would be horrified to see a legal practioner representing a particular client also presiding as a judge in the very same matter. Yet it is nothing, in the minds of these champions of transparency, justice and logic for their own regulator to masquerade as a juggler of these two hot balls.
The intergration of the regulatory function and the representative function in one organ is not only a blend of irreconcilliables but is also an expression of the highest form of deception and hypocrisy.
This is not just an academic argument. This is a big issue about transparency in an organisation which must be a custodian of what is just, legal, transperent and rational.
Legal practioners must be angels of justice and must conduct themselves in an impeccable manner. Of necessity they must have checks and balances: meaningful scrutiny and accountability. This requires a regulator who is impartial, dispassionate, exercising its function without interest and without inhibition.With its obvious interest and obescene internal contradiction the Zimbabwean Law Society is not in a position to discharge this role.
-Therefore the Law Society is rendering an appalling disservice to our nation and our noble profession.
The Law society has both regulating and disciplinary authority. Regulation refers to “controlling human or societal behaviour by rules or regulations or alternatively a rule or order issued by an executive authority or regulatory agency of a government and having the force of law.”
Regulation covers all activities of private or public behaviour that may be detrimental to societal or governmental interest. The rules laid down by regulation are supported by penalties or incentives designed to ensure compliance
There are two main theories regarding the genesis of economic regulation. One is the “public interest” theory which conceives regulation as arising from the need to rein in the free exercise of market forces and consumer and producer impulses in cases where such a display can act as an obstacle to the maximisation of societal well being or to remove externally applied obstacles to market forces when their play is desirable. In certain cases, regulation is also justified by this school on equity grounds. An alternative theory is that of „capture‟ espoused by a variety of realists drawn from varied professional and academic backgrounds who see regulation as being supplied in response to the demands of interest groups struggling among themselves to maximise the incomes of their members. bargaining powers of different vested interest groups which in turn result in their unequal influence over regulatory rules/norms and hence outcomes. In other words, regulation is seen as a tool which can be manipulated by different interest groups to their advantage using their respective bargaining powers with the regulating machinery.
It would be overly simplistic to label one theory as „superior‟ to the other on the basis of their abilities to characterise reality, given the complexities typifying economic activity. While the „public interest theory‟ can be defended on normative grounds (i.e. regulation as conceived by it is necessary to maximise welfare and bring about equity) the „capture theory‟ reflects quite well how regulatory frameworks can be manipulated by powerful interest groups to their own advantage. In other words, the former focuses on what “should be” whereas the latter concentrates on what “could be” in real world situations. But the regulatory environment which has developed over a period of time does not seem homogeneous across sectors.
Legal Practioners do not only have it in their mouths to criticise state institutions and others, but they make commentary on real or alleged corruption. Yet their actions are covered by an organistion acting as a cum-trade union cum-regulator.
Are these learned people excecuting their jobs with efficiences? Are Zimbabwean having a fair return of their money paid to these special people? We do not know since they are shielded by their own trade union
The quality if justice does not only depends on prosecutors, the ministers, the government and the judges: it also depends on the output of these men and woman who have captured their regulator.
Many countries around the world have split the two functions. The union is own its own and so is the regulator. This is the case , for axample, with the system in England and Wales.
The reasons why Zimbabweans, like many nations around the world, do not comment on this sickening integration of roles is that law is an art that is historicallly shrouded in a well-orchestrated myth. Average citizens are buffled by the law institutions, the silliness of its language, its bewildering processes and most of all the frequency of the awkwardness of its practitioners. As a result when they see this illicit union between the regulatory and the trade union functions people shake their heads and say ” in the world of lawyers anything can jump onto the bed with anything.”
That said, we are in the twentieth century and this grotesque arrangement must end.
The Legal Practitioners Act requires one to be first a member of the LSZ before they are registered by a judge of the High Court and admitted as a lawyer. this is unfair because the constitution gives everyone the right to associate with organisations or groups of choice.
Freedom of association encompasses both an individual’s right to join or leave groups voluntarily, the right of the group to take collective action to pursue the interests of its members, and the right of an association to accept or decline membership based on certain criteria. It can be described as the right of a person coming together with other individuals to collectively express, promote, pursue and/or defend common interests.Freedom of association is both an individual right and a collective right, guaranteed by all modern and democratic legal systems, including international law, including articles 20 and 23 of the Universal Declaration of Human Rights and article 22 of International Covenant on Civil and Political Rights. The Declaration on Fundamental Principles and Rights at Work by the International Labour Organization also ensures these rights.
Freedom of association is manifested through the right to join a trade union, to engage in free speech or to participate in debating societies, political parties, or any other club or association, including religious denominations and organizations, fraternities, and sport clubs and not to be compelled to belong to an association.It is closely linked with freedom of assembly, particularly under the constitution of Zimbabwe. It is important that unjustified restriction on competition should be removed. The government must come up with a consultation paper and report into competition and regulation in the legal services market. Lawyers should be allowed to join a society of their choice. The current framework is out-dated, inflexible, over-complex and insufficiently accountable or transparent.
The government and lawyers must consider what regulatory framework would best promote competition, innovation and the public and consumer interest in an efficient, effective and independent legal sector; and open a right to have another Law society.
There must be a framework which will be independent in representing the public and consumer interest, comprehensive, accountable, consistent, flexible, transparent, and no more restrictive or burdensome than is clearly justified. There must be another competitive Society representing lawyers then one Disciplinary Commission for all lawyers.
Zimbabwe must set up a Legal Services Board – a new legal services regulator to provide consistent oversight regulation of front-line bodies such as the Law Society and the Advocate Council.
Regulatory powers to be vested in a Legal Services Board, with powers to devolve regulatory functions to front-line bodies, which will be two or more Law Societies subject to their competence and governance arrangements.
The Law Society of Zimbabwe has abused its dominant position time and again and in most cases refused to admit competent lawyers just for political reasons.
Law Society must be forced to re-open the market to competition and allow lawyers to chose a society of their choice. There must be the new, independent and robust oversight regulator, the Legal Services Board; the single complaints-handling and consumer redress body, the Office for Legal Complaints; and the facilitation of the innovative Alternative Business Structures, helping the legal sector to become more responsive to consumer needs.
The government may wish to regulate monopolies to protect the interests of lawyers who are the service providers.
Zimbabwe continues to be guided by lawyers who are oppressed by their Law Society which is the agent of feudalism.
It is high time that the lawyers be allowed to exercise their right of association and be given an alternative association.