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| The High Court in Bulawayo |
An Interview with
Nqobani Nyathi
Lawyer
Legal Resources Foundation Zimbabwe
TheLawMap: Is the perception of the legal profession any different between Zimbabwe and the UK? Is there perhaps a greater reverence towards the profession in Zimbabwe and to an extent in this part of Africa than how lawyers are perceived here in UK?
The perception of lawyers is the same worldwide. Who does not know of a lawyer joke? The legal profession is still seen as a necessary traditional profession which to a larger extent advocates for justice and equality and as a means for solving disputes, although always comically vilified. There are different perceptions on issues such as ethics but I believe the profession has been tried and tested on that.
Zimbabwe has a fused legal profession where lawyers are collectively referred to as ‘legal practitioners’ as opposed to dividing between Solicitors and Barristers. This system has many disadvantages but there is no choice in a country where legal aid is virtually nonexistent and where justice is only accessed by those who can afford it. It is also the same system that is responsible for a mediocre judiciary which has hindered the positive development of our domestic jurisprudence. To a greater extent I feel that the legal profession in Zimbabwe has a lot to learn from other jurisdictions.
It is impossible to offer quality legal services in a fused system where a legal practitioner is responsible for taking instructions, drafting pleadings, preparing for trial and appearing in court for a trial or hearing (at the same time focusing on other aspects of legal practice such as commercial law) . It is frustrating and negatively affects the quality of presentation. Even if the profession was to be divided, only a few will afford services of advocates who will be seen as specialists on specific areas.
Another negative impact on the legal profession in Zimbabwe is the structuring of the law firms. There are approximately four hundred law firms and approximately one thousand registered lawyers in Zimbabwe, with an average of 2.5 lawyers per law firm. It is not unusual to find sole practitioners. The practice of law requires guidance and interaction between the legal practitioners which cannot be achieved if members practice alone or are few, overwhelmed with work and sometimes inexperienced. In this regard the legal profession in Zimbabwe is failing to give clients the deserved quality services under the circumstances.
I have a lot of respect for the legal professing in the United Kingdom and in this part of Africa; I respect the legal profession in South Africa, although it is still undoubtedly divided on racial lines. I believe it is a trendsetter in many areas.
TheLawMap: The Law Society of Zimbabwe was formed in 1981 to replace the previous bar association with its membership drawn from all registered legal practitioners residing in Zimbabwe whether in private practice, in commerce or in civil service. As a practising lawyer, what would be the principal differences in role and scope between the Law Society of Zimbabwe and the Law Society of England & Wales?
The law society of Zimbabwe governs the legal profession and is set up in terms of the Legal Practitioners Act [Chapter 27:07]. Since 1981 Zimbabwe has a fused profession and registered lawyers entitled to practice fall under the category of “legal practitioner”, unlike the Law Society of England and Wales under which the Solicitors fall. Every legal practitioner has a right of audience in any court in which persons are entitled by law to legal representation.
There is however a de facto Bar with members practicing as “Advocates” in a manner that is similar to that of Barristers, while such members may have their informal rules of practice, they fall under the Law Society as any other member. The society is obviously aware of members who practice as such so as to differentiate them with those who practice in partnerships (similar to Solicitors), who have more obligations, for instance in relation to the keeping of trust accounts. The Law Society is responsible for governing the conduct of legal practitioners as defined in the Legal Practitioners Act, including the issuing of practicing certificates to those in private practice.
Every registered Legal practitioner is entitled to be a member of The Law Society of Zimbabwe. The law society of Zimbabwe is managed and controlled by a council of that is composed of not less than eleven councillors of whom at least nine are elected by members. The remaining minority is appointed by the Minister of Justice and Legal affairs. The Law Society of Zimbabwe is therefore an independent body. The councillors once elected, in turn elect, from among themselves, a President and Vice President. The Executive Secretary (a permanent employee) is in charge of day to day activities of the Law Society of Zimbabwe and reports to the council.
The functions of the Law Society of Zimbabwe are specified in the Act and they include keeping registers of the names and addresses of registered legal practitioners, representing the views of the legal profession and maintaining its integrity and status, defining and enforcing the correct and uniform practice and discipline among legal practitioners and encouraging the study of law and jurisprudence and providing means of securing on the part of those seeking registration.
Currently the Law Society is in the process of codifying the conduct of its members and implementing a new system of continuing legal education to improve the quality of services to clients.
The Law Society of Zimbabwe is similar in many respects to the Law Society of England and Wales. It has also tasked itself with ensuring that the rule of law is respected and has been consistently published its criticism where the rule of law has been threatened or disregarded. This has led it into a collision course with the Executive, to an extent where a former president has been arrested on frivolous charges and its offices of searched. To a larger extent it has also become the guardian of human rights and the rule of law.
TheLawMap: What is the likely impact in terms of justice in the wake of cuts to the UK Legal Aid funding?
Cutting legal aid will obviously leave the vulnerable people struggling to find help. The cost of legal service in the United Kingdom is, without exception very high. Legal aid is an integral aspect of access to justice and an essential part of administration of justice in any democratic state. The proper administration of justice requires that access to justice must not be duly restricted by lack of resources to pay fees. In the absence of legal aid there is only justice for the rich, which by any imagination is undesirable.
Some lawyers are even at risk of losing their jobs, unless they start charging those indigent client fees or alternatively turning them away. There will be a long lasting undesirable impact. Withdrawing legal aid from cases such matrimonial actions , child custody, clinical negligence, welfare, employment, immigration, housing, debt, benefit and education is ill timed and the poor will increasingly find it difficult to access justice. Many people will struggle to find the help they need because of reduced service. It will not be a surprise to see some people homeless as a result.
As a lawyer practicing in a country where legal aid is virtually nonexistent I foresee unpleasant consequences to vulnerable people and to the legal system itself. People who do not have access to justice are more likely to take law into their own hands through corrupt activities. The impact of legal aid cuts was either downplayed or underestimated.
The Law Map: How is the International Criminal Court (ICC) and its role seen in Zimbabwe and for that matter in Africa?
There is a disturbing escalating trend of lack of harmony between Africa and the International Criminal Court. The ICC is seen as a court that has entirely focused on Africa and has failed cast its net wider to other continents. Africa has the highest number of state parties to the Rome Statute and has played a fundamental role in firming up the Rome Statute system over the years; however the qualitative relationship between ICC and the African political sphere is pathetic.
The tension between Africa and the ICC is a result of the court’s particular focus on Africa. With such information one can easily allege bias. Contrary to the common baseless approach, the court’s interventions in Africa have been in fact supported by African states, for example the Democratic Republic of Congo, Uganda, Central African Republic and Mali where the situations were referred to the ICC by those states. There is a notable absence of effective domestic institutions and adequate resources to pursue investigation and prosecution of perpetrators of grave crime in all those states, whose criminal justice system is also unsatisfactory to a larger extent.
The use of this self referral mechanism by African states is on its own, demonstrative of voluntary submission to the jurisdiction of the ICC and a belief in its ability to exercise its mandate to fight impunity by the countries, where the ICC has intervened.
In situations where investigations were opened on the volition of the prosecutor, there was also support from African governments. In Kenya, where the current feud is focused on, the prosecutor was given evidence of crimes allegedly committed during 2007-08 post-election violence by an international commission established by the Kenyan government. It must be taken into account that an investigation was only formally opened after the Kenyan government failed to meet a deadline for starting its own prosecutions. The investigation in Ivory Coast was supported by the government, under the leadership of Laurent Gbagbo, which voluntarily accepted the court’s jurisdiction in 2003. The arguments of the court’s bias glaringly overlook the support that ICC gets from Africa.
In Darfur and Libya the ICC prosecutor was referred by the United Nations Security Council, with support from African states sitting at the time. The ICC only opened investigations where it was asked to, and where grave crimes were being committed. It has not sought cases in Africa. There is no reason why the prosecutor may not go where victims need justice. It is a fact that many ordinary Africans do not share the same views as their bigoted leaders who feel they are entitled to immunity from prosecution.
The shaky relationship between the ICC and AU is a cause for concern. The African leaders, through bodies such as the African Union and other regional organs need to view the Court not as a competitor in the exercise of justice but rather as an institution that can compliment them in fighting against impunity. The insecurity by the AU is largely as a result of the regional body’s failure to fight impunity and grave human rights violations on the African continent. The court’s intention is not to create antagonism, which has become an excuse for some African leaders whose hands are dirty. AU must focus on building a solid relationship with ICC rather than pointing a finger and raising frivolous issues.
ICC has a lot to do in terms of instilling confidence. The time has come for the court to spread its wings and focus on other states who have continued to act with impunity under its nose.
TheLawMap: If you had one wish to change something within the legal profession, what would it be?
My wish is to see a united legal profession sharing ideas and contributing to the development of law that will lead to a revered jurisprudence and quality legal services to clients.
With special thanks to Lawyer Nqobani Nyathi for his valuable time.
Nqobani Nyathi is a young lawyer based in Bulawayo Zimbabwe. He is a registered legal practitioner, notary public and conveyancer, employed as a Centre Lawyer by Legal Resources Foundation Zimbabwe, a charitable and educational trust aimed at improving access to justice for the poor and marginalised. A very keen amateur photographer, his Instagram Gallery contains an interesting and often powerful, array of photographs All pictures embedded within this interview itself were taken by Nyathi himself. His Twitter handle is @nqobani_nyathi
