By Isaac Mwanza
I have been deeply troubled and saddened by the news that the Judiciary, by letter from the Registrar, has decided to ban Lusaka lawyer Gilbert Phiri from having any audience with any court until a disciplinary matter referred to the Law Association of Zambia is concluded. In effect, the Judiciary has suspended an advocate pending the outcome of the hearing.
What the Judiciary has done is to complained asking for punishment yet they have punished him. Does that even make sense? How can you bar a lawyer who is not suspended by LAZ from appearing before a Court? What is happening in this country?
Of course all legal practitioners are bound by the rules of a game. Every professiona is bound by its own rules. Lawyers are bound by various rules, laws and regulations some of which date back to the One Party era that forbid lawyers from publicly commenting on any legal matter of public interest unless cleared by LAZ.
Section 85 of the Legal Practitioners Act, Chapter 30 of the Laws of Zambia makes any person duly admitted as a practitioner shall be an officer of the Court and shall be subject to the jurisdiction thereof.
The Legal Practitioners Act, the LAZ Act (Chapter 31), the Legal Practitioners Rules of 2002 (Statutory Instruments No. 51) collectively provide for the manner in which lawyers must conduct themselves, the requirements of compliance to the rules, and consequences of any failure by any advocate to abide by the Rules.
In particular Rule 41 is clear that non-compliance, failure, evasion or disregard of these rules without reasonable cause shall constitute professional misconduct or conduct unbefitting a practitioner in terms of section 53(ii) of the Act while Rule 42 plainly states that the legal Practitioner Committee, may where it considers fit, suspend the practicing certificate of any practitioner facing disciplinary proceeding for breach of any of these rules and shall submit the matter to the disciplinary committee in accordance with the Act.
I will not belabour to explain provisions of Sections 22 and 29 of the Legal Practitioners Act in as far as procedures for disciplining an erring member of the bar must be handled but its important to note that the Courts and not the judiciary have powers vested in then for disciplining advocates as officers of the Court and members of LAZ.
Section 30 of CAP 30 specifically state that where an order has been made by the Court (not the Judiciary) upon an application to remove from, or strike off, the Roll the name of a practitioner, or to require a practitioner to answer allegations contained in an affidavit, and has not been drawn up by the applicant within one week after it was made, the Registrar may cause the order to be drawn up, and all future proceedings thereon shall be taken as if the application had been made by the Registrar.
What must be clear though is that Section 7 of the LAZ Act a member of the Association may be expelled or suspended therefrom upon such grounds and in such manner as may from time to time be prescribed, provided that no member shall be expelled or suspended unless he has been afforded a reasonable opportunity of answering any allegations made against him.
The question is whether the Registrar or the Judiciary can indeed suspended the license of a member which allows him or her to have audience with the Court without the member being afforded an opportunity to be heard. The answer is in negative. Before there is an order of court or suspension from LAZ, he must be heard. That’s what the law says.
But if a lawyer is said to have misconducted himself or herself, the law is clear on what should happen. The Judiciary has complained and until the complaint is dealt with, he is deemed innocent.
For argument sake, let us argue that the learned Advocate may have been the one using that Facebook page and posted those articles the Judiciary has complained about, at best, its an issue of contempt and the court must still hear him before even suspending any part of his license. I really can’t believe what is going on in this country.
The Registrar should also know better that the Judiciary as an arm of government cannot punish a lawyer. Only a court can & a court is NOT synonymous with the Judiciary. Lawyers are officers of the court & not the Judiciary. It is in their capacity as officers of the court that lawyers are amenable to be disciplined by the court for professional misconduct. But the Judiciary as a whole has no jurisdiction over any lawyer which I know of.
So what is the effect of the letter written by the Registrar to LAZ and copied to Advocated Phiri informing him that the Judiciary has suspended part of his license that gives him the right of audience to any court. It literally must nkt have any effect and this is where Linda Kasonde ought to give the Registrar a little precedential lecture.
In the case of Dora Siliya, Maxwell Moses Boma Mwale, Hastings Sililo vs. Attorney General and Electoral Commission of Zambia (2013/HP/1159) on the application for Judicial Review concerning the effect of a press statement issued by the Judiciary and letter written by the Acting Registrar.
Some brief facts of this case were that the Applicants all intended to contest in by-elections whose date for filing of nominations was set for 9th August, 2013. On 8th August, 2013, the Judiciary of Zambia issued a press statement through its Public Relations Officer, one Terry Musonda. The statement purported to opine on the provisions of section 104 (6) and (7) of the Electoral Act No. 12 of 2006 (hereinafter referred to as the Act) that the requirement to render a Report by the High Court as envisaged by the above sections of the Electoral Act was “overtaken” once there was an appeal to the Supreme Court of Zambia.
The 2nd Respondent requested for a formal notification regarding reports from a judicial officer. On 9th August 2013, the Acting Registrar of the High Court of the Judicature for Zambia, Chilombo Maka Phiri, rendered a purported report to the 2nd Respondent advising that the requirements by the High Court to render a report in line with Section 104 (6) and (7) of the Electoral Act, did not extend its application to the Supreme Court of Zambia.
Following the said letter from the Judiciary, the 2nd Respondent issued letters to all political parties on 10th August, 2013 stating its decision not to allow nomination papers to be filed by candidates affected by the nullification of elections by the Supreme Court.
The then High Court Judge, Honourable Mrs. Justice M. S. Mulenga (now Constitutional Court Judge) delivered the judgment on the 3rd day of September, 2013 which clearly stated:
“In the history of the Judiciary in Zambia, there has never been occasion where the institution has given interpretations of the law through press statements. As appropriately argued by the 1st Respondent, the only competent persons to interpret the law are judges and adjudicators performing their functions as such. The press statement issued by the Public Relations Officer, who is not a judicial officer, cannot be equated to a court judgment or order. The letter by the Acting Registrar is a word for word reproduction of the press statement and is also of no legal consequence because it was not issued in accordance with the provisions of section 104 of the Act which only mandates a High Court judge to prepare reports. The Acting Registrar can only issue judicial pronouncements in the course of judicial proceedings before her. In the case of section 104 of the Act, the duty of the Acting Registrar is merely to convey the reports issued by the High Court and this function of conveying is an administrative and not judicial function. This fact has been acknowledged by the Acting Registrar in the 1st Respondent’s affidavit in opposition. Therefore, the Acting Registrar cannot purport to give interpretation of the law and convey the same while acting in an administrative capacity.”
Without leaving any doubt, the action by the Registrar to suspend part of the license for a Lusaka based lawyer which allows him to have audience in any court without according him the right to be heard first is an abrogation of the law. I love politicians like Dora Siliya because they had the courage to challenge such decisions even at time when they were on the other side of political power.
LAZ must give some legal guidance on whether a member’s license or a part of it can be suspended without being heard. It is my view that LAZ knows better that the letter by the judiciary has no legal effect except to trigger a disciplinary process. So, how will LAZ act in this instance and especially that there is already precedent from the Court on the effect of letters by the Registrar. Will LAZ still be bold enough to still stand or they need to play along with the suspender?
There appears to be a powerful hand in the Judiciary that directed the Registrar to issue the directions he has but that hand doesn’t want to publicly come out that it has been making these decision. My fear for advocate Phiri is that if LAZ does not stand up, that hand may want to finish his career. It was easier for Dora Siliya as a politicians to challenge the decisions of the Registrar but it may not be easier for advocate Phiri to challenge that invisible powerful hand. The easiest route may be to apologise so the invisible hand can cool down but precedent will not be set.
Cry my beloved country!