By E. Munshya, LLM, MBA, MDIV
It is common knowledge that the Law Association of Zambia (LAZ) has issued a circular reminding Zambian legal practitioners that they must obtain permission from both LAZ and its Legal Practitioners Committee before they comment on legal subjects in Zambia. I have taken Isaac M. Mwanza’s (of YALI) position that the laws and regulations forbidding legal practitioners from commenting on legal subjects are archaic and need reform. In an earlier article, I highlighted ways the law could be reformed particularly by splitting LAZ’s regulatory function from its fraternal function. As the situation stands now though, it is still law currently that legal practitioners must not comment on legal matters without clearance from LAZ. I have reservations over this law, but as a legal practitioner myself, I must agree with it. The law is what it is, not what we wish it should be.
All lawyers in Zambia including politicians such as Hon. Tutwa Ngulube (Patriotic Front legal advisor) and Mr. Lusenga Mulongoti (UPND member and practicing lawyer) need clearance from LAZ before they comment publicly on legal subjects. That is the law. This regulation must be read strictly and it is clear that it is aimed at regulating “legal practitioners” and not all citizens in general. LAZ has no mandate to police Zambians’ debate on any subject. LAZ has no legal mandate to police what citizens debate on social media. The mandate of LAZ is restricted to forbidding legal practitioners. Citizens on social media or on MUVI TV have the liberty to lead and mislead themselves on any question of law, fact or anything in between. Press freedom and freedom of thought and association includes the freedom to read and misread the law, to lead and mislead self, and the liberty to debate and degrade dialogues. LAZ lacks the legal mandate and has no legal competence to regulate general public discourse on legal, political or constitutional matters.
LAZ can no more regulate public attitudes to Article 101, than the Resident Doctors Association of Zambia can regulate public speech on tumors and red blood cells. LAZ can no more regulate the Zambian public’s speech on an electoral petition than the Engineering Institute of Zambia can regulate public attitudes towards the structural integrity of FINDECO House.
For those citizens, who intend or are already, in the process of becoming legal practitioners in Zambia, it is important that they follow LAZ guidelines now so that it does not create an unnecessary distraction when they apply to practice. In fact, I would encourage all law students in Zambia to become student members of the Law Association of Zambia so that they begin getting used to draconian provisions that restrict freedom of thought and expression for legal practitioners. LAZ, its statutes and its regulations must change, however. And each one of us has the responsibility to suggest those changes. It will not be easy for LAZ members and legal practitioners to change; it must take the collective effort of all citizens.
The legal profession by nature is very respectful of tradition and does not change easily. It is nearly impossible to change the legal profession from inside. Once you take the great Barristers’ Oath and wear the gown, you suddenly realise that you are part of the long tradition of legal ancestors such as Justice Coke, Lord Denning, Lord Diplock and all the great men and women of the jurisprudential old. Nevertheless, at great personal sacrifice, some in Zambia must begin dramatizing for change to the profession. In my case, as a legal practitioner licensed in a different commonwealth jurisdiction where we do not have restrictions like my colleagues have in LAZ, it provides me some freedom to freely debate and advocate for changes in Zambia without having to worry about getting into trouble with the Zambian regulator.
My professional ethics in Alberta though still impose upon me the burden to be civil when I debate legal issues beyond the borders of our jurisdiction. So, LAZ is right, legal practitioners it licenses must get permission to make legal and perhaps political commentary. LAZ however, has no mandate to police all citizens who comment on legal subjects. LAZ can’t police students but it would be advisable for Zambian law students and graduates to stop getting under LAZ’s skin. Those that want to get under LAZ’s skin and advocate for some changes, though, will find me ready to meaningfully contribute to a worthy dialogue within limits of my professional obligations as a practitioner, albeit in Alberta.
Elias Munshya is a Zambian practicing civil litigation, administrative law and corporate-commercial law at West End Legal Centre in Calgary, Alberta, Canada.