Implementing Cross Border Legal Practice

IMPLEMENTING CROSS BORDER LEGAL PRACTICE
WITHIN THE EAC STATES

A CASE OF THE LEGAL PROFESSION IN TANZANIA
John Seka
Master of Laws (LL.M) Dissertation

University of Dar es Salaam
October, 2012
ii
IMPLEMENTING CROSS BORDER LEGAL PRACTICE

WITHIN THE EAC STATES
A CASE OF THE LEGAL PROFESSION IN TANZANIA
By
John Seka
Dissertation Submitted in (Partial) Fulfillment of the Requirements for

the Degree of Master of Laws (LL.M) of the University of Dar es Salaam
University of Dar es Salaam

October, 2012
iii
CERTIFICATION
The undersigned certify that they have read and hereby recommend for
acceptance by the University of Dar es Salaam a dissertation entitled:
Implementing Cross Border Legal Practice within the EAC States: A Case
of the Legal Profession in Tanzania in fulfillment of the requirements for the
degree of Master of Laws of the University of Dar es Salaam.
.
Dr. Angelo M Mapunda
(Supervisor)
Date: ------------------------------
iv
DECLARATION
AND
COPYRIGHT
I, John Beniel Seka, declare that this dissertation is my own original work and that it
has not been presented and will not be presented to any other University for a similar or
any other degree award.
Signature ------------------------------------------
This dissertation is copyright material protected under the Berne Convention, the
Copyright and Neighbouring Rights Act, Cap 218 Revised Edition, 2002 and other
international and national enactments, in that behalf, on intellectual property. It may not
be reproduced by any means, in full or in part, except for short extracts in fair dealings,
for research or private study, critical scholarly review or discourse with an
acknowledgement, without the written permission of the Director Postgraduate Studies,
on behalf of both the author and the University of Dar es Salaam.
ACKNOWLEDGMENT
First, I would like to thank my supervisor, Dr. Angelo Mapunda, for making this a
meaningful learning process. His guidance and encouragement throughout the process of
formulating my ideas was invaluable. His ability to view things pragmatically was
critical and priceless to the success of this study.
Secondly, I would like to thank Dr. Gastorn Kennedy for his insights into the EAC cross
border practice. Our frequent debates on the matter and the need to come up with a
common agreement for Tanganyika Law Society were essential in shaping the flow of
arguments and the suggested solutions.
Thirdly, I would like to thank my friends and colleagues in the LL.M class of 2011/2012
at TGCL for supporting and encouraging me to pull up my socks i with a view to
completing this study in time, amidst some tough challenges in time management.
Without their invaluable support I would not have finished this on time. To them, I
express my sincere thank you.
It will be unfair if I will not spare some praise for my academic advisor, Hon. Justice Dr.
Steven Bwana of the Court of Appeal of Tanzania and his wonderful family for their
closeness to me and fellow classmates and for their everlasting encouragement to go the
extra mile. Dr. Justice Bwanas fatherly approach to students was very helpful in that he
made us realize that the feared and revered Justices of the Court of Appeal of Tanzania
are after all humans. The routine dinner parties he prepared for us, which ultimately
involved the slimiest legal discourses and sampling of the choicest drinks and food, not
only inspired us to work hard but also made the tiresome studying exercise relaxing.
I, also say thank you to all the respondents who I came across during the conduct of this
research. Your contributions and insights were very valuable in producing this final
work.
vi
Lastly, though not the least, I thank my parents, Prof & Mrs. Beniel Raum Seka for
nurturing me to be who I am. In the same vein, I thank my dear wife, Judith and my
daughter, Alice who endured many moments of loneliness, while I was trying to piece
together this work. To you, my dears, I say your patience will be rewarded.
Finally, I thank my Lord Jesus Christ for giving me health, strength and perseverance to
continue and finish this study.
vii
DEDICATION
I dedicate this work to my fellow legal practitioners in Tanzania, who like me, are
perplexed by the question of how they will be able to compete and earn their deserved
bread and butter amidst the prospects of cross border practice within the East African
Community jurisdictions following the coming into operation of the EAC Common
Market Protocol on 1st July, 2010.
viii
LIST OF ACCRONYMS AND ABREVIATIONS

AGM
Annual General Meeting
CBLP
Cross Border Legal Practice
EAC
East African Community
EALS
East Africa Law Society
ECOWAS
Economic Community of West African States
EU
European Union
GATS
General Agreements on Trade in Services
MFN
Most-Favoured Nation
NAFTA
The North American Free Trade Agreement
TCU
Tanzania Commission for Universities
TGCL
Tanzania Germany Centre for Postgraduate Studies in Law
TLS
Tanganyika Law Society
WTO
World Trade Organisation
ix
LIST OF STATUTES AND CASELAW

International Treaties, Agreements, Protocols and Directives
The Treaty for the European Economic Community of 25th March 1975 (The Treaty of
Rome)
The Treaty for the Establishment of the EAC Community, 1967
Treaty for Establishment of the East African Community, 1999
Treaty of the Economic Community of West African States (ECOWAS) of 20 th May
1975
The Revised Treaty of the Economic Community of West African States (ECOWAS) of
24th July, 1993
Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by
lawyers of freedom to provide services (EU Directive 77/249)
Council Directive 89/48/EEC of 21 December 1988 on a general system for the
recognition of higher-education diplomas awarded on completion of professional
education and training of at least three years' duration (EU Directive 89/48)
Principal Legislations (Tanzania)
The Advocates Act, Cap 341 Revised Edition 2002
Civil Procedure Code, Cap 33 Revised Edition 2002
Law School of Tanzania Act, Act No 18 of 2007
Tanganyika Law Society Act, Cap 307 Revised Edition 2002
Subsidiary Legislations (Tanzania)

Law School of Tanzania (Admission, Fees and Conduct of Practical Legal Training)
Rules, 2011, Government Notice No 173 of 17th June 2011
Advocates (Professional Requirements) Regulations G.N. No. 395 of 1963
Case Law
Mvita Construction Company versus Tanzania Harbours Authority Civil Appeal No. 94
of 2001 (Unreported)
TABLE OF CONTENTS
Certification ............................................................................................................ iii
Declaration and Copyright ...................................................................................... iv
Acknowledgment ..................................................................................................... v
Dedication ............................................................................................................. vii
List of Acronyms and Abbreviations ..................................................................... viii
List of Statutes ........................................................................................................ ix
Table of Contents ..................................................................................................... x
Abstract ................................................................................................................ xiii
Chapter One: General Overview........................................................................... 1
Background to the Problem ...................................................................................... 1
Context of the Research Problem ............................................................................. 2
Statement of the Problem ......................................................................................... 4
Objectives of the Study ........................................................................................... 5
Literature Review .................................................................................................... 6
The Research Hypotheses ...................................................................................... 16
Significance of the Study ....................................................................................... 17
Scope and Limitations of the Study ........................................................................ 18
Research Methodology .......................................................................................... 19
Outline of the Chapters .......................................................................................... 24
Concluding Remarks .............................................................................................. 26
xi
Chapter Two: Legal Services as Commodity in International Trade ................ 29

Introduction ........................................................................................................... 29
Defining Cross Border Trade in Services ............................................................... 29
Legal Services as a Commodity in International Trade ........................................... 30
The Worldwide Discourse in Cross Border Trade in Services ................................ 33
Regional Cooperation Frameworks and Cross Border Trade in Legal Services ....... 42
Chapter Three: Cross Border Trade in Legal Services in the EAC ................. 49
Introduction ........................................................................................................... 49
Cross Border Trade in Legal Services under the EAC Treaty ................................. 49
The EAC Common Market Protocol and Legal Services ........................................ 53
Chapter Four: Analysis of the Current Legal and Regulatory Framework for Cross
Border Practice in Tanzania Mainland............................................................... 60
Introduction ........................................................................................................... 60
The Current Legal Framework for Legal Service Profession in Tanzania ............... 61
Qualification
Criteria
for
Admission
to
Practise
as
an
Advocate
in
Tanzania................................................................................................................74
Chapter Five: Implementation of the EAC Cross Border Trade in Legal Services
under the Current Legal Framework in Tanzania ............................................. 83
Introduction ........................................................................................................... 83
xii
The Legal Framework in Tanzania and the Restriction of CBLP ............................ 84

Chapter Six: Conclusion and Recommendations ............................................... 93
Introduction ........................................................................................................... 93
Conclusion ............................................................................................................. 94
Recommendations.................................................................................................. 96
Concluding Remarks on the Study ....................................................................... 101
Bibliography ........................................................................................................ 103
xiii
ABSTRACT
At the conclusion of negotiations on the EAC Common Market Protocol, Tanzania was
the only EAC country that had indicated that it will not allow Cross Border Legal
Practice (CBLP) by restricting entry of lawyers registered in other EAC Partner States in
its legal services market. This move was taken while the other four Partner States had
indicated to allow some form of CBLP by 2015. This move by Tanzania drew a lot of
criticism across the whole of East Africa especially from Partner State lawyers and their
bar associations accusing Tanzania of being Anti-East African and protectionist. Why
Tanzania opted to take such a position has never been made public leading to a lot of
speculation as to the true intention.
Against this background, this study has undertaken to search and document the reason
for Tanzanias decision and to understand its rationale by examining the current legal
and regulatory frameworks governing the legal practice in Tanzania. The study aimed at
establishing whether, in the light of the East African Community Treaty framework, the
decision by Tanzania was informed by the current legal framework or was influenced by
other factors and considerations not entirely legal.
Through the use of various methodologies such as interviews, documentary reviews and
informal discussions during conducting of the study, it has been discovered that unlike
some other EAC Partner States, Tanzanias legal and regulatory framework for
practising law is very permissive to foreign practitioners who aspire to practice law in
the country and thus leading to the conclusion that the decision not to allow CBLP was
informed by other non legal considerations.
xiv
The study concludes by indicating that by refraining from expressly declaring its
commitment to CBLP, Tanzanias legal framework still allows foreign practitioners to
come and practice unrestricted.
Given this predicament, the study therefore recommends for the reconsideration of the
decision to withhold commitment on account of broader benefits that are expected to be
received through regional trade relations and urges the government and other
stakeholders to consult and reach consensus on the next steps towards negotiations with
a view to ensuring that Tanzania does not lose out on the opportunities brought by the
East African Common Market.
CHAPTER ONE
GENERAL OVERVIEW
It is important for all EAC Partner States to fully implement the Common Market Protocol to ensure free
movement of people, goods, services, capital and rights of residence and establishment. Mwai Kibaki
delivering the State of EAC Address to the East African Legislative Assembly on 25th January, 2012.
1.1. Background to the Problem

On 20 November 2009 the Heads of State of Kenya, Uganda, Tanzania, Rwanda and
Burundi signed the East African Community (EAC) Common Market Protocol
(hereinafter referred to as the Protocol). There was reason for joy and celebration for
many East Africans from the common man to the professional service providers such as
lawyers on the possibility of coming into force of a borderless East Africa. The Protocol
promised to usher in the possibility of goods, people, services and capital moving freely
and without obstacles across the borders. For lawyers in each Partner State, there was an
anticipated hope that very soon they will be able to practise their profession and their
legal skills in each others backyard.
Therefore, it came as a surprise when almost all the EAC member states opted in their
Schedules of Commitments to the Protocol to move more cautiously, gradually and
progressively in opening up of their legal service markets by indicating timelines for
full opening of the market for legal services. More surprising was the realisation that
The United Republic of Tanzania opted not to indicate any commitment to opening up
its legal services market to its East African counterparts.
This lack of clear commitment was a sure and clear sign that Tanzania was at the
moment of signing not ready to embrace the possibility of opening up its legal services
market. What prompted the Tanzanian Government to shy away from expressing its
commitment to open up its legal services market is the subject matter of this study.
This study partly examines the reasons for Tanzania not to indicate in its Schedule of
Commitments the time for opening up of the legal services market. In the course of
searching for the reasons, the research will identify issues that made the country hesitate
to sign. It will also identify the challenges that need to be addressed to enable Tanzania
to live up to its obligations under the EAC Treaty as well as assess the opportunities that
are available.
1.2. Context of the Research Problem

Globalization, as noted by Glenn1, means the end not of history, but of geography, in the
sense of the importance of geophysical boundaries. Glenn noted that while the statement
like many other statements on globalisation might seem a little bit of an exaggeration,
many close and familiar boundaries have recently declined in importance, whether they
are geophysical, political, or legal. Regionalization is an important part of this process,
since we define the new regions not so much in terms of geophysical boundaries, though
to a large extent they are still present, but in terms of new political and legal boundaries
that surpass those of the state.
See Glenn H. Patrick (2001) The Morris Lecture: Conflicting Laws in a Common Market? The NAFTA
Experiment 76 Chi.-Kent. L. Rev p. 1789. Retrieved online on 28th September, 2012 through
http://www.er.uqam.ca/nobel/r34546/jur7890/Chicago_Kent_L_Rev.pdf
The East African Region can not shy away from the process of globalisation and has to
follow suit.Thesigning of the EAC Treaty was a sure sign that East Africans have
realised that, in order to be competitive in the globalised world, their unity as a people
and as an economic block, is an advantage which must be exploited. In order to benefit
from the process of globalisation, East Africans must be able to trade and relate with one
another and develop a common identity which will enable them to trade and relate with
the rest of humanity.
The profession and practice of lawyers is undoubtedly one of the key drivers in the quest
for benefits that may accrue out of globalisation and, more importantly, out of the East
African Cooperation framework. Therefore, with the signing of the Common Market
Protocol, East African Legal Practitioners became entitled to the right to cross borders
and practise their trade in any country across East Africa. What was not known was that
such a decision was not as simple as it sounded because there needed to be in place legal
and regulatory frameworks in each partner state to support the possibility of practising
across borders. Much more importantly, there needed to be a support infrastructure
amongst the practitioners to support the proposed opening up of the closely guarded
profession.
It became apparent during the negotiations leading to the conclusion of the Common
Market Protocol that there was still deep mistrust and lack of clear common vision
amongst East African legal professionals on the true design, scope and scheme of
operation on cross border legal practice. For Tanzanian practitioners, the idea that
lawyers from neighbouring countries, particularly from Kenya and Uganda, would come
and practise in Tanzania was greeted with mixed reactions with some practitioners
supporting the idea and others opposing it2. Despite several attempts to shed light and
dispel the fear, there seems to be no end in sight to the deeply ingrained fear.
These general fears were cemented during the signing of the Common Market Protocol
on 20th November, 2009 when the Government of Tanzania indicated through its
Schedule of Commitment that it will not open up its legal services market to
practitioners from other East African jurisdictions3.
It is in this context that this study comes along to try and attempt to understand the
underlying fears and challenges and attempt to shed more light and afford an
opportunity to address the issues with a view to assisting in moving forward the East
African Agenda.
1.3. Statement of the Problem
It is interesting to note that this fear is also expressed in other EAC Jurisdictions as well. Hon. Murungi,
an MP from Kenya succinctly summarized the fear in the following extract from debate in the Kenya
Legislative Assembly official Records (Hansard) of 23rd April, 2002 on page 688:
We are very happy that we are amending the Advocates Act to permit cross border practice so
that lawyers from Tanzania and Uganda can practise in this country. But what we would like the
AG to look at is, as we open our doors to these lawyers in the spirit of EAC cooperation, whether
Tanzania and Uganda are also opening their doors so that Kenyan lawyers can practise in Dar es
Salaam, Kampala and other cities in East Africa because it should be done on reciprocal basis.
3
See the East African Community Common Market Schedule of Commitments on the Progressive
Liberalisation of Services available online and retrieved on 28th September, 2012 through
http://www.eac.int/commonmarket/documentation/doc_details/42-schedule-on-trade-in-services.html
Following the ratification and commencement of implementation of the East African

Common Market Protocol on 1 st July, 2010, it is certain for Tanzanian legal services
practitioner; that opening up of the legal services market to service providers from other
East African Partner States is inevitable. What is not certain and can be debated is
whether in opening up the legal services market, Tanzania and its legal practitioners will
benefit in the long run.
This study examines and analyses the concept of cross border legal practice in the
context of Tanzania legal framework and in the process, outlines the issues, challenges
brought up by integration and pinpoint the opportunities that can be presented. The
study proceeded on the assumption that it is highly unlikely that there will be a reversal
of the decision of the EAC Partner States to open their services industry including the
legal services market and therefore, for Tanzanians the only opportunity available is to
evaluate the issues and confront, address and manipulate the challenges brought about
with a view to making them work in favour of Tanzania while at the same time
searching for available opportunities to reap maximum benefits brought up by the
opening up.
1.4. Objective of the Study

This study is guided by one general objective, which is further subdivided, into three
specific objectives. The general objective is to ascertain whether and to what extent the
decision not to open up Tanzania Legal Services market and allow Cross Border Legal
Practice (CBLP) reached by the Government of the United Republic of Tanzania during
negotiations leading up to the signing of the Common Market Protocol on 20th
November, 2009 was informed by the existing legal framework governing the legal
profession.
To complement the general research question, the following specific research questions
will be answered:i.
Whether it is the existing legal framework for lawyers practice informed

the decision by the Government of Tanzania to withhold its commitment
to open up its legal services market to practitioners from other EAC
Partner States.
ii.
Whether the existing legal framework for legal practitioners in Tanzania

supports or hinders Cross Border Legal Practice with other EAC Partner
States.
iii.
What the key legal issues, challenges and opportunities are that need to
be addressed, overcome and harnessed to ensure legal practitioners in
Tanzania emerge as the ultimate beneficiaries when Tanzania opens its
borders to practitioners from other EAC Partner States under the CBLP
Framework.
1.5. Literature Review
A lot has been written on the increasing importance of cross border trade in services
including legal services at the international and regional level. The World Bank4, writing
generally on the internationalisation of trade in services which includes legal services,
notes in one of its most recent leading works, that in the last twenty years the growth in
trade in services has been phenomenal mainly as a result of advances in technology to
the extent that trade and services have attracted the attention of policy makers. The study
further notes that in the years before the 2007 financial crisis, trade in services grew as
much as the trade in goods, at an average rate of 12 percent and that the trade in business
services (such as engineering, legal, health, accounting, and management services) grew
evenmore quickly, at 14 percent over the same period5.
This general view that trade in service is gaining importance is supported by a number
of authors and institutions such as the World Trade Organisation (WTO) and the
International Lawyers and Economists against Poverty (ILEAP). The WTO in one of its
publications notes that services represent the fastest growing sector of the global
economy which account for about 70 per cent of world gross domestic product (GDP),
one third of global employment and nearly 20 per cent of global trade6. In further
support of the WTOs position; ILEAP in one of their publications entitled Harnessing
World Bank (2009), Negotiating Trade in Services: A Practical Guide for Developing Countries,
International Trade Department, p.2

5
Ibid. p.2
World Trade Organization, Services: rules for growth and investment, (last accessed on 12th May,
2012 through http://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm6_e.htm
Services Trade for Development: A Background and Guide on Service Coalitions in

Africa and the Caribbean7, notes that the services sector plays an integral role in the
functioning of any modern economy and has earned the status of being the cornerstone
of all economic activities as a result of the impact on development8.
As highlighted by the World Bank9, negotiations on service agreements increasingly

feature in modern trade agenda. The growing importance of trade in services has
translated into the prominence of services in trade agreements. According to the World
Trade Organization (WTO), its members have notified 263 regional trade agreements.
Of these, 74 cover trade in services. Since the entry into force of the WTO in 1995,
service agreements have been actively negotiated by developed and developing
countries alike. As noted by the World Bank, the entry of WTO into the International
Trade Arena in 1995 marked the turning point for trade in services agreement since in
that year the marathon negotiations for the General Agreements in Trade in Services
Hustler, M. and D. Primack, 2012. Harnessing Services Trade for Development: A Background and
Guide on Service Coalitions in Africa and the Caribbean. Toronto: ILEAP (Background Brief No. 22) p. 5
(Retrieved on 1st May, 2012 from http://www.ileap-jeicp.org/downloads/bb22_background-guide-servicecoalitions-africa-caribbean_april12.pdf)
8
Ibid. The Policy brief goes on to argue that trade in services affects growth and development through
various channels such as improving the quality of life (health services) and skills of the labour force
(education), provision of essential basic infrastructure by telecommunication, financial and energy
services to name just a few, to the invaluable role transportation services play in supporting the traditional
manufacturing and agricultural sectors, and as well the value professional services impart in enhancing the
competitiveness of any business. Simply put, the services sector is the cornerstone of all economic
activity.
9
Ibid.
(GATS) was concluded and for that first time a general framework for negotiating
services was made available.
The international trend to have a general framework within which to negotiate service
trade agreements influenced by the promulgation of GATS appeared to fuel efforts to
establish regional arrangements between themselves using the framework provided by
GATS. Thus in a space of few years after GATS, other regional blocks such as the
European Union (EU); North American Free Trade Agreement (NAFTA), The East
African Community (EAC) and the Economic Community of West African States
(ECOWAS) engaged in cross border agreements in services.
The European Union, in an effort to liberalise cross border legal services, notes Liu 10,
has embarked on a number of implementation stages under the framework provided by
the Treaty Establishing the European Economic Community (Treaty of Rome), which
established as a primary goal of the EU, the creation of an internal market without
internal frontiers, where goods and services are traded freely and easily by granting
every EU national the "Freedom to Provide Services" and the "Right of Establishment"
in another Member State.
As noted by Liu, the freedom to provide services envisions the gradual abolition of
restrictions on the free supply of temporary services within the EU while the Right of
10
Florence R. Liu, The Establishment of a Cross-Border Legal Practice in the European Union, 20 B.C.
Int'l
&
Comp.
L.
Rev.
369
(1997),
p.
http://lawdigitalcommons.bc.edu/iclr/vol20/iss2/7 on 26th April, 2012
370
Retrieved
from
10
Establishment includes the "right to take up and pursue activities as self-employed

persons" on a permanent basis in the host Member State11.
Like the European Union, the liberalisation of legal service in North America was
conducted under the aegis of NAFTA. According to Paton12, The NAFTA13, drew on the
initial experience of the GATS to entrench basic principles governing cross-border trade
in services by declaring that the agreement covered all cross border non-financial
services, unless such a service is specifically excluded.
The NAFTA was based on the principles of improvement of national/MFN treatment for
all of its service providers and a commitment to eliminate citizenship and permanent
residency requirements for licensing or certification of professional service providers
within two years from the effective date of NAFTA (by January 1, 1996), failing of
which retaliation by equivalent restriction was permitted14. In 1998, the three NAFTA
signatories signed an agreement permitting lawyers from any one of the three to act as
11
This was achieved through a number of directives issued by the Council of Ministers such as the 1977
directive (Directive 77/249,) which aimed at facilitating the development of legal services sector; 1988
Directive (Directive 89/48,) which provided for the mutual recognition of higher-education diplomas.
12
Paton, Paul D., Legal Services and the GATS: Norms as Barriers to Trade (September 1, 2003).
Available at SSRN: http://ssrn.com/abstract=1262054 or http://dx.doi.org/10.2139/ssrn.1262054

13
The NAFTA was signed in December 1992 by the leaders of the three respective nations, Canada, the
United States and Mexico, and subsequently passed upon by their respective legislative bodies.
14
A sector specific annex to NAFTA (Annex 1210.5) on professional services outlined how the general
principles applied to legal and other professional services. In particular, Annex 1210.5 set out procedures
aimed at the development of mutually acceptable professional standards and criteria by requiring that
licensing be based on criteria, such as competence, education, experience and professional development.
11
foreign legal consultants in the other two. Lawyers licensed to practise in one country
are, under this agreement, allowed to set up offices in the other countries and advise on
laws of their home country, as well as represent clients in international commercial
transactions.
Like its regional counterparts in Europe and North America, East Africa has not been
spared this pressing need to regionalise and harmonise trade relations. Based on their
historic ties, the three countries of Kenya, Uganda and Tanzania 15, made a deliberate
decision to re-integrate in the form of East African Community on 30th November, 1999
by signing and ratifying the Treaty for the Establishment of the East African Community
(hereinafter referred to as the Treaty) 16. By ratifying the Treaty, all member states
agreed that they will cooperate in forming a customs union; a common market; a
monetary union and ultimately a political federation. The need for rapid development
and enhanced cooperation amongst the partner states fuelled the integration process to
the extent that within a short span of time, they concluded and adopted the EA Customs
Union in January 2005 through the Customs Union Protocol and the Common Market
Protocol in July 2010 through the Common Market Protocol.
15
This historic tie stems from the fact that the three countries had already attempted to unite and formed
the East African Community in 1967 which very unfortunately lasted for only 10 years and eventually
collapsed in 1977 on account of various reasons. For a brief analysis of these reasons, read generally,
Kamala D (2006), The Achievements and Challenges of the New East African Community Co-operation
(Retrieved on 26th April, 2012 through http://www2.hull.ac.uk/hubs/pdf/memorandum58.pdf)
16
This regional arrangement grew to five members after Rwanda and Burundi joined on 6th July, 2009.
12
With the coming into force of the Common Market and its attendant pillars of free
movement of goods, labour, capital, services and rights of residence and establishment,
a cross section of citizens across Partner States were eagerly awaiting for the opening up
of borders and frontiers which would allow unrestricted movement of labour from one
country to another.
For many lawyers from partner states who were keen to cross borders into Tanzania and
practice law, the decision by the Government of Tanzania17 not to open up its legal
services market to lawyers from the Partner States as envisioned in the Treaty and the
Common Market Protocol, nor to give indications as to when it will open up its legal
services sector must have come as a shock. This decision by the Government of
Tanzania which has remained unavailable in the public domain18 has led to serious
speculations amongst lawyers within and without Tanzania. The main speculations have
centered on establishing the underlying reasons for the decision taken by Tanzania.
This study pinpoints some of the reasons as documented in various literature written
prior to and after the conclusions of negotiations that culminated in the adoption of the
EAC Common Market.
17
Although not clearly indicated in the constitutive text, Tanzanian Governments decision not to include
legal services in the Schedule for Progressive Liberalisation of Services (Annex V of the EAC Common
Market Protocol) has been interpreted as indicating its intention not to open up its legal services market.
18
Other than the clear indication in the Schedule of Commitments that Tanzania has no intention to
progressively open up its legal services market.
13
The oldest available literature on the matter in Tanzania is a position taken by the
Tanganyika Law Society, whose Governing Council in 2003 issued a position paper19 on
the issue of CBLP and demanded that before CBLP is made operational, partner states
must undertake to:i.
Harmonise their statutory requirements on legal training at undergraduate and

postgraduate bar courses.
ii.
Establish mechanisms for reciprocal recognition of qualifications from each

others respective institutions for legal training.
Echoing sentiments issued by their Governing Council in 2003, it appears that the legal
practitioners in Tanzania are still undecided on whether to fully support or oppose cross
border legal practice. During the Half Annual General Meeting of the Tanganyika Law
Society held in Arusha on 14th August, 2009, the issue of Cross Border Legal Practice
was hotly contested with one group urging for its adoption labelling it inevitable and
that it presents an opportunity for Tanzanian Legal Practitioners and another section of
the members urging for more research and cautious approach for fear that the
opportunities currently enjoyed will be usurped by other practitioners from the region20.
19
During my discussions with officials from the Tanganyika Law Society lead by its Acting Chief
Executive Officer, Mr. Stanslaus Nyembea, this position taken by the TLS in 2003 is still the position to
date when issues relating to CBLP are involved.
20
This researcher happened to be present at the meeting and observed firsthand, the debate and the
seemingly divided groups amongst the legal practitioners in his then capacity as a Programme Officer at
the Tanganyika Law Society. The seemingly divided position also caught the attention of the media. For a
comprehensive reading of how the media reported the incident at the TLS Half Annual General Meeting
read Bernard James article: Cross-Border Legal Practice Divides Meet in the Citizen Newspaper of 15th
August 2009. This incident was also captured in a summarized form by the Tanganyika Law Society Bi-
14
The issue was vigorously contested again at Half AGM of TLS that was held in Dodoma
in February, 2013 and was left in abeyance on account of lack of clarity on what
position to take21.
Writing generally on the topic of cross border legal practice, Mapundanotes the
following as the prerequisite for adoption of CBLP under the EAC Framework:
............that there is need for one uniform criteria for admission and enrolment
to the bar throughout the East Africa in order to facilitate cross border practice
which is now just a matter of time, particularly with the signing of the protocol
on free movement of labour within EA Region.
Kennedy22 in another attempt to position the debate in its right context under the EAC
notes:
Impression TLS got at EALS 2003 AGM discussion on CBLP, was coded
language aimed at unregulated entry by Kenyan lawyers into the Tanzanian
market, even before the harmonization and standardization mechanisms are put
into place, being fed by self interest rather than evolution of a mutually
beneficial cross border practice. Particularly at the superior court level as the
Treaty stipulates.
weekly bulletin the Newsflash of 15th 30th August, 2009 on page 3. The Newsflash can be retrieved from
the TLS website
through http://www.tls.or.tz/docs/flashdocs/2009/August2009%20Newsflash.pdf
th
(accessed on 14 June, 2012)

21
As a follow up a new committee was constituted by the Governing Council of TLS to deal generally
with issues related to the EAC and one of its first assignment was to revisit the 2003 Governing Council
position and advice the Governing Council. The agreed position in the Committee which was
communicated to the Governing Council is that TLS retains the position it took in 2003. The author of this
study was a member of the committee and was privy to the discussion leading up to the retention of the
2003 position.
22
Quoted on Pg 2 in Kennedy Gastorn , The East Africa Regional Integration Process and the Critical
Factors to Consider when Articulating a Cross Border Legal Practice Policy, a paper presented to the
Tanganyika Law Society Council Meeting on 8th December 2011 at the Kilimanjaro Hyatt Hotel in Dar
es Salaam.
15
Kapinga23 in his opening remarks to a Regional Bar Workshop organised by the East
Africa Law Society to discuss issues on globalisation and regional Integration for the
Legal profession was quick to point out that Regional Integration, as far as the legal
profession is concerned, has become a priority policy issue and noted that all countries
in the region were committed to improving the legal profession, and to have a conducive
environment to pave way for cross border practice within the region. He further noted
that for cross border practice to take root in EAC, challenges that come with cross
border practice, such as different legal systems, language issues, nationalistic
tendencies: protectionism, disparities in the Bar Associations, competition, unfair
market practices and limited resources must be addressed.
Echoing the challenges of cross border practices identified by Kapinga, representative

from the law societies of Kenya, Uganda, Zanzibar, Tanzania, Rwanda and Burundi who
attended the EALS Regional Bar workshop also added the following challenges to the
adoption of cross border practice24 : lack of harmonised training of lawyers; fear of
competition; protection of clients; lack of effective regulatory landscape; resistance to
accepting changes even when they are inevitable; weak bar association in some
23
EALS, Report of the Eastern Africa Regional Bar Workshop: Issue of Globalization and Regional
Integration for the Legal Profession, Arusha, Tanzania, 8-10 March 2011 Pg.1 (Accessed 14th June, 2012)
http://www.tls.or.tz/docs/cledocs/CBA%20EALS%20Reg%20Bar%20Workshop%20Report%20Mar11%
20final.doc)
24
Ibid. EALS p.15 17
16
jurisdictions; differences in legal traditions between continental and civil law vis a vis
common law and protectionism.
Ochieng25, while addressing generally on the legal issues in the operationalisation of the
EAC Common Market, noted that in achieving the harmonisation process, legal
practitioners must overcome several challenges including the challenge of language
barrier as a result of Burundi and Rwanda using French while Kenya, Uganda and
Tanzania are using English; differences in Legal Systems in view of the fact that
Rwanda and Burundi are based on European Civil Law; Kenya, Uganda and Tanzania
are based on common law systems; and Legal Conservatism due to the fact that lawyers
who are comfortable in their jurisdictions may not be willing to compete in other
jurisdictions. Other noted challenges that may need to be overcome include poor
perception by lawyers with fears of being swallowed up by other Partner State lawyers;
delays in harmonising legal frameworks with possibilities of unfair competition; limited
demand of legal services in the region and public perceptions of foreign lawyers who are
generally accused of charging higher cost and delaying justice26.
25
Ochieng, D, Legal Issues in the Operationalisation of the EAC Common Market: The Role of the Legal
Profession, a paper presented to the joint EALS/TLS CLE seminar held on 19th April, 2011 at the Ubungo
Plaza Hotel in Dar es Salaam, pg.16 (Accessed on 14th June, 2012 from the Tanganyika Law Society
website
http://www.tls.or.tz/docs/cledocs/THE%20ROLE%20OF%20LAWYERS%20IN%20THE%20OPERATI
ONALIZATION%20OF%20THE%20COMMON%20MARKET.ppt)
26
Ochieng, D, ibid. p 21 24
17
Echoing the same sentiments, Prof. Twinomugisha27 cites different legal systems;
language barriers; nationalistic tendencies bordering protectionism28; disparities in the
Bar Associations; competition in the form of unfair market practices and limited
resources as the major challenges towards cross border legal practice in the East African
Region.
Highlighting the measures to overcome the identified challenges, Prof. Twinomugisha

proposes that, for any legal practitioner to qualify to practise in another jurisdiction, they
ought to posses the following29: a recognized law degree; must have Membership in the
national and EAC Lawyers Association; must be certified as an advocate in the home
country; must yield to disciplinary procedures in both countries; must take professional
liability and fidelity insurance and must be in compliance with ethical and practice rules
in host country identified.
1.6. The Research Hypothesis

In approaching the study of the CBLP in Tanzania, a general hypothesis was developed
on account of the fact that the Government of Tanzania has decided to withhold its
commitment to open up its legal profession to legal practitioners from other EAC
27
Twinomugisha, Towards Cross Border Legal Practice in East Africa, p.4. This was a presentation made
on 19th April 2011 at a joint TLS/EALS Joint CLE seminar held at the Blue Pearl Hotel in Dar es Salaam.
This presentation was retrieved on 14th June 2012 from the Tanganyika Law Societys website through
http://www.tls.or.tz/docs/cledocs/TOWARDS%20CROSS%20BORDER%20LEGAL%20PRACTICE%2
0IN%20EA-%20Prof.%20Ben.ppt
28
In here you may find issues relating to both perceived and actual restrictions to practice laws that are
inherently included in some Partner States rules and procedures for admission to practice laws.
29
Twinomugisha, supra pg.7
18
Partner States as envisioned in the EAC Common Market Protocol. The following was
the general hypothesis developed:
That despite the commonly held belief from within and outside the country that
Tanzania restricts foreign legal practitioners to practise in the country, the legal
framework governing provision of legal services in Tanzania is and has always
been liberal in allowing foreign legal practitioners to register and practise in
Tanzania and any decision to restrict foreigners to practice law under the EAC
Framework or otherwise is contrary to the existing law and practise and is
informed by some other factors not entirely legal.
To support the general hypothesis presented above, the study also formulated three other
specific hypotheses that build up on the general hypothesis. These were:i.
That despite the clear provisions of the laws, many Tanzanian legal practitioners
led by the Tanganyika Law Society, are currently opposed to CBLP and demand
for safeguards that will address key issues and challenges before doors are open
to CBLP.
ii.
That the best approach to negotiate a better deal that will foster acceptance by
Tanzanian practitioners of CBLP is a participatory involvement of legal
practitioners through the TLS in the current negotiations within the framework
of the Common Market Protocol.
19
1.7. Significance of the Study

This study seeks to contribute to the general body of knowledge oncross border
movement of legal services under the EAC Treaty Framework by analysing the
possibility of easing restrictions and facilitating cross border movement of legal services
following Tanzanias ratification of the EAC Common Market Protocol. The
contribution of this study is on the analysis of sufficiency of the prevailing regulatory
and practice environment relating to legal services on Mainland Tanzania and whether it
facilitates cross border practice.
It is hoped that the study will help individuals and corporate legal service providers as
well as other regulatory bodies such as the Council for Legal Education and Tanganyika
Law Society to better understand the concept of CBLP and formulate strategies that will
promote benefits that may accrue. It is hoped that the study will also position TLS to
overcome the anticipated challenges.
It is further hoped that the study will enrich the understanding of cross border practice
amongst stakeholders and will act as starting platform for the subsequent negotiations
should the Government of the United Republic of Tanzania decide to rethink its position
on cross border practice.
1.8. Scope and Limitation of the Study

The study reviews the current legal and regulatory framework for legal practice against
the backdrop of the EAC Treaty and EAC Common Market Protocol to establish the
20
extent to which Cross Border Legal Practice envisioned in the Protocol maybe
implemented in Tanzania.
This subject is wide and of interest to lawyers in Tanzania and may tempt a researcher to
wander widely and around with a view to ensuring all material issues are covered. In
order to prevent the probability of this from happening, the following limitations to the
study were applied:i.
That despite the fact that under the Treaty for the Establishment of the EAC,
Tanzania is one state; this study limits its analysis on the legal profession in
Tanzania Mainland and does not touch on Tanzania Zanzibar. The reason for
omitting Zanzibar was to limit the scope of discussion. Time and resources could
not allow for such a broad based discussion.
ii.
That the researcher chose only 3 regions of Arusha, Dar es Salaam and Dodoma
in Tanzania Mainland for consultations out of possible 26 regions. The regions
were chosen as representatives of the rest. Arusha was chosen on account of
being the seat of the EAC, East Africa Court of Justice (EACJ) and EALS. It
also has more than 60 advocates practicing there and, being close to Kenya, has
the potential of attracting and experiencing a lot of cross border business and
lawyers under the CBLP arrangement. The choice of Dar es Salaam was based
on the fact that it is the commercial capital of Tanzania and therefore had a good
number of respondents as well as the potential for conducting a lot of CBLP.
The choice of Dodoma was made on account of balancing opinions between
those practitioners who potentially see CBLP in practice and those who may not
21
be directly exposed to CBLP at least in its inception stage on account of the fact
that CBLP usually follows cross border business.
iii.
That although the study makes reference to other EAC Partner States, it is not a
comparative analysis of the existing legal framework and its exposition was not
intended to be a comparative study and should not be treated as such. In making
this decision and focusing on Tanzania, the author realised that a very important
aspect of each Partner States attitude towards CBLP will be missed.
1.9. Research Methodology

In conducting this study, the researcher devised several methodologies, tools and
instruments for collecting and analysing data.
1.9.1. Choice of Case Study

In undertaking this study, the researcher chose to use a case study research design to
conceptualise and observe the problem under study. By using the case study research
design, the researcher at the end of this study was able to accomplish the following:i.
To acquire a richer and more in-depth understanding of the concept of cross

border legal practice and its application in East Africa.
ii.
To narrow down this very broad field of research into one easily researchable
topic.
22
1.9.2. Choice of Data Sources for the Research

In conducting this research, the researcher relied on documentary evidence and
interviews as the choice of the sources of data. In getting the initial list of respondents to
be interviewed, a convenience sampling approach was used. Usually, under this
methodology, the sample is chosen according to its availability to the researcher30. This
approached worked well because many of the respondents are busy people and very
mobile.
The researcher, being interested in finding informants who may best answer the
research question, decided to rely on purposive sampling of key informants and
therefore made no attempt to randomly select the interviewees31.
1.9.3. Interviews
The decision to conduct interviews was seen as the most obvious and sensible way of
discovering legal practitioners understanding of Cross Border Legal Practice. This
interview method largely contributed to obtaining information and insights which
couldnt be obtained or couldnt easily be captured by other research instruments. In the
opinion of the researcher, these interviews were essential in the sense that they helped
the researcher retain the richness and vividness of the obtained information.
30
Leedy, 1993 p.119
31
Creswell, 1994 p. 144).
23
The interviews mainly involved consultation with key stakeholder in the legal sector in
Tanzania. These interviews helped the researcher to gain insights into the prevailing
knowledge on cross border legal practice and the evolution of the thinking around the
subject area. Since the legal services industry is still a closely-knit family, whereby
practitioners know each other and would have known who possessed what additional
facts, a snowballing approach was used by the researcher by asking interviewees to
recommend other experts and colleagues who could further provide information.
This approach helped a lot in obtaining reliable sources of information. It contributed to

obtaining information and insights which couldnt be obtained or couldnt easily be
captured by other research instruments. In the opinion of the researcher, these interviews
were essential in the sense that they helped the researcher to retain the richness and
vividness of information obtained.
1.9.4. Documentary Sources

Documents were a very important source of information in the present study. Some of
the documents analysed included reports of the East African Community; reports of
other organisations in the East African region; papers and presentations made by
Tanganyika Law Society, East Africa Law Society and individual practitioners;
materials from academic institutions as well as documents from the Government of
Tanzania. By analysing these reports on issues of cross border legal practice, the
researcher gained valuable information about the content and context of the issue under
study.
24
Apart from studying the various reports, the researcher utilised the availability of back
copies of newspapers at the University of Dar es Salaam library which are a rich source
of information on the perceived perception on Cross Border practice. The researcher
believes that gaining external documents from various newspaper reports supplements
the evidences gained through interviews and other internal documents and possibly
serves to obtain another point of view, as most internal reports are written from the
organisations points of view. The information gathered from the documents
supplemented the evidence produced in the interviews.
1.9.5. Ethical Rights of the Participants

In undertaking this research, the generally accepted ethical rights of a participant; the
right to privacy and voluntary participation; anonymity and confidentiality were applied
and relied upon.
Privacy was maintained by obtaining informed consent of the interviewee. In the same
vein, anonymity issues were addressed by ensuring all the interviewees agreed that they
didnt mind to be quoted although the researcher has tried very hard to maintain
anonymity of the interviewees32. Participants were comfortable with their right to
confidentiality33 after being assured that the purpose of this research was purely
academic one. This way, all the interviewees waived the policy of confidentiality.
32
One of the biggest concerns in research is the protection of the respondents interests and well-being
through the protection of their identity. If revealing their survey responses would injure them in any way,
adherence to this norm becomes all the more important.
33
Bless and Higson-Smith, 2000 stress that participants must be assured that the data will only be used for
the stated purposes of the research and that no other person will have access to the research data.
25
1.9.6. Data Analysis

In conducting this research, the researcher used a variety of tools to analyse data. The
first analytic technique used in the process was the field notes. After each field
interview, the researcher assessed the significance of what had been recorded and how it
related to the concepts and theories that were relevant to the study. This exercise was
essential in order to provide clarity in data collection (Riley et al 2000). The interviews
were recorded and were transcribed verbatim and read in their entirety in order to gain a
sense of the whole. The questions formulated in the semi-structured interview guide
provided broad parameters within which qualitative data obtained was analysed.
The transcribed verbal data from all the interviews were then categorized according to
the theme corresponding to the questions that they addressed. These questions covered
the themes or theoretical propositions of cross border legal practice as found in the
literature and which form the objectives of the study.
Once all the data had been categorized into themes, the next step was scanning each of
the issues and identifying patterns to see how the findings of the study compared with
the theoretical propositions put forward at the beginning of the study.
1.10. Outline of the Chapters

Chapter One provides the background material to the subject matter of the study. It
discusses the origin, need, context, significance and the existing literature on the subject
matter of the study from within and without the country. It further discusses the
26
hypothesis employed, methodological approach used to arrive at findings and the

limitations faced in conducting the study.
Chapter Two is devoted to a consideration of discourse surrounding provision of

services in general and legal services in particular as a commodity in international trade.
It traces the origin and subsequent rise of trade in services as a special item of trade
which is distinct to trade in goods. The chapter further provides the general framework
at international level for conducting trade in services by analysing the provisions of the
General Agreement on Trade in Services, an international agreement concluded and
ratified by many countries including Tanzania under the aegis of the World Trade
Organisation (WTO) to regulate services trade amongst member states. The discussion
under this chapter proceeds to pinpoint that many regional arrangements in Africa,
Europe and Latin America following the principle laid down by GATS have concluded
their own agreements to regulate trade in services. The chapter concludes by showing
that trade in services, including legal services, has emerged as one important item in
trade relations amongst countries and is increasingly being considered when countries
conclude regional arrangements, including the EAC Regional Integration Framework.
Chapter Three flows directly from where Chapter Two ends by examining the concept
of cross border trade in services under the East African Regional Integration
Framework. It points out that East Africa, in concluding its regional cooperation
arrangements, has followed closely and adopted the concept of trade in services and
trade in legal services as enshrined in the GATT Agreement. It further interrogates and
analyses several commitments reached by each EAC Partner States towards cross border
27
legal framework. A key fact in this chapter is the fact that Tanzania as one of the key
partner states in the EAC has made a commitment not to open up (for the time being) its
legal services market to cross border legal services.
Chapter Four examines the legal and regulatory framework governing the provision of
legal services in Tanzania in the context of the commitments made by Tanzania in
relation to cross border legal services. It seeks to examine the extent to which the
existing legal and regulatory framework is supportive of cross border legal practice and
whether there are any hurdles or obstacles for a foreigner to come and practise in
Tanzania in the spirit of EAC Cooperation.
Chapter Five complements the analysis conducted in Chapter Four by considering the
relationship between the EAC Common Market Protocol which makes provision for
cross border trade in legal services and the existing legal framework governing legal
practice in Tanzania. The Chapter focuses on answering the question whether the
decision by Tanzania not to open up its legal services to other Partner States was
informed by the existing legal framework or was influenced and motivated by other
factors which may not be entirely legal.
Chapter Six is the concluding Chapter. It concludes with a summary of the main
arguments and a general assessment of recommendations on the way forward in the
negotiations towards cross border legal practice. The chapter ends with concluding
remarks to the general tenor of the thesis.
28
1.11. Concluding Remarks on Chapter One

From the analysis above, it becomes clear that there is abundant literature that traces the
development of cross border trade in services across the world under the auspices of
WTO through the GATS Agreement. There is abundant literature on increasing regional
trade agreements that allow for cross border trade in services such as the one in the EU
and NAFTA.
As we are moving towards Africa, literature on cross border legal services is becoming
slimmer on account of the fact that it is only the EAC region that has made any concrete
progress on negotiations regarding regional agreements that touche on services through
the signing of the EAC Common Market Protocol and thus making CBLP a reality34.
The social and economic potentials provided by the signing of the Common Market
Protocol have generated a rich literature that accesses the hopes, achievements and
challenges underlying the EAC Common Market, including issues that address the
challenges of fostering cross border trade in services: including the decision by Tanzania
to withhold commitment to allow CBLP. A further review of literature to find the real
reasons for this apparent decision indicates that there is no document that outlines the
reasons but rather one must search through various documents and draw ones own
conclusions on what prompted Tanzania to opt out of declaring open, its legal services
market.
34
It should be noted that other regional arrangements in Africa such as SADC and ECOWAS have
indicated the possibility of moving towards the direction taken by EAC but they havent yet concretized
their commitment.
29
In the apparent lack of clear policy statement, this research will attempt to fill in this
gap. This lack of a clear position on the issue amongst practitioners and lack of a recent
common position from the Tanganyika Law society and the apparent lack of a written
literature on the matter indicate a clear gap in the body of knowledge and make this
study, at the present time, of substantial importance. In an effort to fill the gap in
knowledge by analysing the decision not to commit in the light of the existing legal
framework and point out through the analysis that the reasons for not committing are not
legal on account of the fact that the current practice on the matter is clear that foreigners
can apply and practise law in Tanzania if they meet prescribed criteria.
At the end of this study, a body of knowledge will appear that will provide a platform
for further discussions on cross border legal practice in Tanzania and in the East African
Region.
30
CHAPTER TWO
LEGAL SERVICES AS COMMODITY IN INTERNATIONAL TRADE
In many respects, lawyers and law firms pave the way for international trade and investment
and they are regarded as a part of the infrastructure of commerce - 2000 Annual Report of the
President of the United States on the Trade Agreements Program35
2.1.
Introduction
This Chapter introduces the concept of cross border legal practice by linking the
provision of legal services which has traditionally and over centuries been offered in the
jurisdiction of the legal practitioner with the ever increasing nature of
internationalisation of trade in services including legal services. By creating the
relationship, the emerging need of cross border legal services in the EAC Region will
best be understood.
2.2.
Cross Border Trade in Legal Services
Though widely used in theory and practice, the term Cross Border Legal Practice is
devoid of any clear precision. The term means different things to different people
depending on the jurisdiction.
This lack of clear definition notwithstanding, this study will adopt the loose definition
adopted by Terry36 who referred Cross Border Legal Practice as the general situation in
which a lawyer originally licensed in one jurisdiction, the Home State, provides legal
35
Terry, L. (2001). GATS applicability to transnational Lawyering and its potential impact on U.S. state
regulation of lawyers. Vanderbilt Journal of Transnational Law, 34(Issue) p. 995. Retrieved on 26.04.2012
http://www.americanbar.org/content/dam/aba/migrated/cpr/gats/terry_full_vanarticle.authcheckdam.pdf)
36
Terry, L A Case Study of the Hybrid Model for Facilitating Cross-Border Legal Practice: The
Agreement Between the American Bar Association and the Brussels Bars, 21 FORDHAM INTL L. J.
1382 (1998) p.1385
31
services in another jurisdiction, the Host State. This can occur when the lawyer
physically travels to the Host State, or when the lawyer provides services through other
means37.
The evolution of this new concept is spearheaded by the fact that, traditionally, lawyers
practise law in the country where they completed their legal studies. This practice,
though still present, is slowly but surely going to change soon in the East African
Community as greater economic integration leads to the greater mobility of lawyers. It is
anticipated that with the envisaged mobility, EA lawyers may benefit from this
increased mobility, as they may practise law in a country that is a member of the East
African Community (EAC) in addition to the one where they obtained their legal
education and license.
In practice however, this mobility is difficult to achieve because it requires a

harmonization of legal standards among countries with different legal systems and
traditions. However, efforts to provide the platform for harmonisation have been going
on across the East African Community basing on the achievement and basic structure of
the common ancestor, the General Agreement on Trade and Services, the GATS.
2.3.
Legal Services as a Commodity in International Trade
In recent times, the world, including the region of East Africa, has noticed a phenomenal
growth in International Trade and Investment, which is substantially larger than the
growth of domestic economies. International business appears to provide more
37
This loose definition is the one which we will use to analyse the concept in the East African context
32
opportunities for expansion, growth and income than does the domestic business alone
as a result of increasing flow of ideas, services and capital across the world. As a result,
innovations can be developed and disseminated more quickly, human capital can be
used better and financing can take place more quickly as well. In addition to all the
above, international investment provides challenging employment opportunities to
individuals with professional and entrepreneurial skills.
Terry38 when explaining the growth of legal services as an international commodity for
the United States notes that, legal services are among the professional service sectors
that have experienced strong growth and that have helped the U.S. trade balance, noting
that the growth was a result of increased demand for legal services resulting from
globalization and economic growth in emerging markets and highlighted the important
role of legal services in facilitating other trades, stating by noting:
The professional services sector provides critical inputs to all sectors of the
economy, including other services. For example, law firms provide support for
commercial transactions and buyer/seller relationships.
As argued by Terry and supported by many commentators, it is now widely admitted

that international business is important and necessary because economic isolationism
has become impossible. Failure to become an active part of the global market assures a
nation of declining economic influence and a deteriorating standard of living for its
38
Terry, L (2010) From GATS to APEC: The Impact of Trade Agreements on Legal Services, 43
AKRON L. REV pg. 875
33
citizens. Successful participation in international business, however, holds the promise

of improved quality of life and a better society in our nation.
For any business and international business in particular to thrive, it needs the necessary
support services such as accounting and legal amongst others. As international business
and investment from abroad have to rely in the services provided by the government and
the private sector in the host country, the service providers such as lawyers in our case
must possess the necessary skills and understanding of laws and procedures of the host
states as well as of the original states in order to offer proper advice. Therefore, the need
for and the role of lawyers with multi-jurisdictional skills have increased. Since,
traditionally, legal practice has been an internal affair of a state, this new emerging trend
of multi-jurisdictional practice creates considerable hurdles to lawyers who have had no
chance to practise internationally on account of the fact that the work does not just mean
cross border work but also cross cultural and sometimes cross language adaptability.
This multi-jurisdictional need for lawyers signify that legal services, as a result of
globalization, haves become an international business prompting for the need to have
rules and procedures that will recognize the importance of lawyers from one jurisdiction
to practise in another jurisdiction by either cooperating with the fellow lawyers as is
currently the arrangement in Uganda or, move in and practice in the new jurisdiction as
is the case with some Mainland Tanzanian lawyers practising in Zanzibar.
Therefore, as a natural consequence of the need for multi-jurisdictional skills in legal

business, there emerges a need for some form of cooperation and understanding between
34
nations to facilitate and regulate the trade in legal services as well as other related
services.
2.4.
The Worldwide Discourse in Cross Border Trade in Services
With the increasing need to regulate the trade in services including legal services,
national states including East African nations had to negotiate a trade agreement under
the auspices of the World Trade Organisation (WTO) that would regulate how trade in
services (including legal services) would be organised. The outcome of these
negotiations was the adoption of the General Agreement on Trade in Services, or the
GATS as is commonly known.
2.4.1. The General Agreement on Trade in Services (GATS)

The General Agreement on Trade in Services, or the GATS is the first multilateral
trade agreement devoted to the progressive liberalization of the laws and regulations that
govern the cross border provision of services. The GATS, which is administered by the
World Trade Organization (WTO), governs a wide array of services, including banking,
tourism, and even accounting and legal services.
2.4.2. Origin of GATS

The GATS, notes Terry39, is one of the many trade agreements that were signed in April
1994 as part of the set of agreements creating the World Trade Organization.
Technically, the GATS is Annex 1b to the Agreement creating the World Trade
Organization. The GATS and other trade agreements emerged from a round of trade
39
Ibid. Terry, L. (2001) p. 998
35
negotiations that are commonly referred to as the Uruguay Round. These multi-year
negotiations concluded on December 15, 1993; and the resulting agreements were
signed on April 15, 1994 in Marrakech, Morocco. The Final Act agreements, as they
are called, include several annexes in addition to the GATS, such as the GATT and
TRIPS, twenty Decisions, three Declarations, and one Understanding. Eight
Decisions and one Understanding are relevant to the GATS; whereby one of these
Decisions directly addresses professional services, which include legal services. Terry
further notes40, that as of June 2001, 141 countries had signed the GATS, including the
United States.
This means that once a country signs the GATS, its regulation of legal services is
automatically subject to certain provisions of GATS such as for example, transparency
requirement, which specifies that all relevant measures be published or otherwise
publicly available. In addition to these general requirements, most countries have
included legal services on their Schedule of Specific Commitments, which means that
legal services are subject to many additional provisions of GATS41.
40
Ibid, p.999
41
For example, if a country lists legal services on its Schedule, then its regulation of legal services must
not only be transparent, but also be administered in a reasonable, objective and impartial manner.
Although most countries included legal services on their Schedules, thus making them subject to many
GATS provisions, they specifically omitted from coverage, their current set of regulations. This has the
effect of requiring a countrys future regulation of legal services to comply with GATS, but permits the
existing set of regulations. Thus, commentators often describe GATS as creating standstill provisions.
36
2.4.3. Modes of Conducting Trade in Services

The inclusion of legal services in the GATS, however, does not mean that a countrys
regulation of cross-border legal services automatically must comply with all the twentynine articles in the GATS. To determine the effect of the GATS on cross-border legal
services, one must examine three different aspects of the GATS. First, one must
consider the provisions that automatically apply to every country that is a WTO Member
State and GATS signatory. Second, one must determine if a country exempted itself
from the most-favoured nation provision in the GATS (the MFN Exemption List) and
thirdly, one must consult the Schedules of Specific Commitments (the Schedule)
submitted by individual countries.
2.4.3.1.
Commitments Based on Countrys Status as a GATS Signatory
Once a country signs the GATS, its regulation of legal services is subject to many of the
first fifteen articles in the GATS. For example, all GATS signatories are subject to a
transparency requirement, which specifies that all relevant measures be published or
otherwise publicly available42.
Another important provision to which a signatory country is subject is the mostfavoured nation (MFN) provision in the GATS. This provision generally requires each
country to accord all WTO Member States the same treatment that it provides to any
WTO Member State. In other words, it is a reciprocal type of provision that requires
42
Tanzania being one of the founding members of the World Trade Organisation since 1st January, 1995 is
automatically a signatory of the GATS Agreement. Thus, because the United Republic of Tanzania is a
GATS signatory, it has agreed that all of its measures regulating legal services will be published or
publicly available.
37
equal treatment as between foreign countries. The GATS MFN provision thus prohibits
reciprocity provisions insofar as they are applied to Foreign Service providers.
A third important provision to which all WTO Member States are subject is the
domestic regulation provision in Article VI. Domestic regulation is also potentially
significant to legal services regulators because of its requirement that, for those
including legal services on their Schedules, regulatory measures, such as admission,
licensing, and discipline measures, be administered in a reasonable, objective, and
impartial manner and that qualification requirements be not more burdensome than
necessary to ensure the quality of the service.
A fourth important generally-applicable provision involves Recognition. Recognition

requirements will be relevant to regulators who must decide whether to recognize
lawyers licensed in other jurisdictionsthe admission by motion situation. The GATS
envisions that recognition issues may also be handled through Mutual Recognition
Agreements negotiated between GATS Member States.
2.4.3.2.
The MFN Exemption
As explained above, each WTO Member State is subject to an MFN provision that
requires a WTO Member State to accord all Member States the same treatment that it
affords to any Member State. At the time the GATS was signed, a WTO Member State
was entitled to place legal services on an MFN exemption list. If a country exercised this
option, it needed not comply with the MFN requirement. Thus, when evaluating the
38
GATSs applicability to legal services, one must ask whether the country is exempt from
MFN requirements43.
2.4.3.3.
Commitments Derived from a Countrys Schedule of Specific

Commitments
In addition to the general requirements that apply to all WTO Members, there are certain
provisions in the GATS that apply only if a country listed the particular service on its
Schedule of Specific Commitments. For the non-trade law specialists, it may be useful
to explain briefly how the Schedules of Specific Commitments were developed. Because
the GATS negotiation process was based on a request-offer system, countries exchanged
information about their proposed Schedules of Specific Commitments during the
Uruguay Round negotiations before the GATS was signed. This permitted a country to
know before it finalized its own Schedule of Specific Commitments, what it could
expect from other countries. These Schedules were subject to fierce negotiations, with
some countries sayingin essenceIll include this service on my Schedule with
these conditions if you will include that service on your Schedule.At a certain specified
deadline, each country had to submit its final proposal, including its Schedule of
Specific Commitments44.
Countries, including Tanzania, listed legal services on their schedules as a covered

service, thus making them subject to many of the GATS provisions. On the other hand,
43
All the EAC Countries agreed to be subjected to the MFN provisions and therefore like many other
nations they didnt subscribe to the MFN exemption list.

44
It is important to know at this juncture that the scheme of negotiations for GATS largely informed the
scheme of negotiations for the EAC Common Market Protocol.
39
other countries listed their current regulations in their Schedules. The consequence of
listing a current law is that the current law needs not comply with the market access and
national treatment provisions of the GATS that apply to scheduled services. In other
words, this structure has the effect of requiring a countrys future regulation of legal
services to comply with the market access and national treatment provisions in the
GATS, but grandfathers in the existing set of regulations. Thus, commentators often
describe the GATS as creating standstill provisions.
If a country lists a category of services on its Schedule, then future lawsand current
laws not included in the Schedulegoverning that service must comply with additional
provisions in the GATS. The market access provision in Article XVI is one of the most
important provisions in the GATS that are triggered if a country lists a service on its
Schedule of Specific Commitments. The market access provision prohibits limitations
on the number of service providers, for example by quotas, numerical limitations, or
monopolies. It also requires that access to the legal services market not be provided in a
manner less favourable than is set forth in the countrys Schedule of Specific
Commitments. To state it differently, the market access provision focuses on what a
member country may not do, employing a negative approach.
Another important provision that applies once a service is scheduled is the national
treatment provision in Article XVII. The protection clause for foreigners as compared to
domestic service providers; this section prohibits regulators from providing foreigners
with treatment that is less favourable than the treatment it accords to its own services
and service suppliers.
40
Finally, if legal services are listed on a countrys Schedule, then the domestic regulation
of legal services in that country must comply with the remaining provisions of GATS
article VI.
Therefore, one needs to note that there are seven key GATS provisions that ultimately
are of most significance to regulators of any countries legal services. These seven
provisions include: (1) the requirements of transparency; (2) most favoured-nation
(MFN) treatment; (3) domestic regulation; (4) recognition; (5) progressive liberalization;
(6) the market access; and (7) national treatment provisions.
For the purposes of this research, only one of the provisions is discussed in detail on
account of its relevance in the context of East Africa with a view to familiarising oneself
with the type of terminology and analysis summarized below.
2.4.3.4.
The Schedule of Specific Commitments Organization According to

Modes of Supply
In addition to the terminology used in GATS substantive provisions, there is additional

terminology with which Tanzanian lawyers should become familiar. When each WTO
Member State filed its Schedule of Specific Commitment, there was a specific format
that it was required to use. This format requires a countrys Schedule of Specific
Commitments to distinguish among four different modes by which legal services may be
offered. The four modes of supply are:
i.
Cross-border supplythe possibility for non-resident service suppliers to supply

services across border into another Members territory.
41
ii.
Consumption abroadthe freedom for the Members residents to purchase

services in the territory of another Member.
iii.
Commercial presencethe opportunities for Foreign Service suppliers to

establish, operate or expand a commercial presence in the Members territory,
such as a branch, agency, or wholly-owned subsidiary.
iv.
Presence of natural personsthe possibilities offered for the entry and

temporary stay in the Members territory of foreign individuals in order to
supply a service.
A brief explanation of how these modes of supply would in practice operate in

Tanzania is as follows: In Mode 1, or cross-border supply, the service itself crosses the border. Thus,
Mode 1 is involved whenever foreign lawyers create a legal product or advice,
which is then sent from outside the Tanzanian border to clients inside the United
Republic of Tanzania. This delivery may occur by means of mail, telephonically,
or electronically.
Mode 2, or Consumption abroad involves the ability of Tanzanian citizens to
purchase from abroad the services of foreign lawyers.
Mode 3, or Commercial presence, involves the ability of foreign lawyers, say
from Kenya or Uganda, to set up a permanent presence in the United Republic of
Tanzania, such as a branch office.
42
Mode 4, or the presence of Natural Persons, addresses the situation in which

foreign lawyers themselves enter the United Republic of Tanzania in order to
offer legal services45.
Thus, in order to understand a countrys obligations under the GATS, one must consult
that countrys Schedule of Specific Commitments. And, in order to understand the
Schedule, one must be able to understand the distinctions drawn above because the
countrys exceptions are listed as subsets of these four modes of supply. Finally, one
must understand that when the term unbound is used in the countrys Schedule in the
market access or national treatment columns, it means that the country has not
agreed that the service in question must comply with that particular GATS requirement
with respect to the particular item that is listed as unbound.
In sum, some provisions of the GATS only apply to services identified in the countrys
Schedule of Specific Commitments. By listing its existing laws in its Schedule, a
country creates standstill provisions and exempts those laws from certain
requirements in the GATS while agreeing not to adopt any provisions that are more
restrictive than the standstill provisions. Therefore, it is important to read the countrys
Schedule to determine the laws for which it only assumed standstill obligations.
45
The difference between Mode 1 and Mode 4, then, is that in Mode 1, it is the service that crosses the
borderfor example, in a virtual fashion by mailing, emailing, or faxing an opinion letterwhereas

in Mode 4, it is the service provider or lawyer who crosses the border. In some countries, there may be
different tax consequences between using Mode 1 and Mode 4.
43
2.5. Regional Cooperation Frameworks and Cross Border Trade in Legal Service
Relying on the basic framework provided by the GATS with minor modifications, the
European Union, the North American Free Trade Agreement ("NAFTA"), the ASEAN
group and many other have adopted or are on course to adopt some form of cross border
supply of legal services.
2.5.1. Cross Border Trade in Legal Services in the European Union

According to Florence R. Liu46, the EU's attempts to harmonize the legal profession are
based on the Treaty Establishing the European Economic Community (Treaty of Rome),
which established, as a primary goal of the EU, the creation of an internal market
without internal frontiers, whereby goods and services are to be traded freely and easily.
She notes that the Treaty of Rome grants every EU national the "Freedom to Provide
Services" and the "Right of Establishment" in another Member State. The Freedom to
Provide Services envisions the gradual abolishment of restrictions on the free supply of
temporary services within the EU. The Right of Establishment includes the "right to take
up and pursue activities as self-employed persons" on a permanent basis in the host
Member State.
The drafters of the Treaty of Rome reasoned that these goals, in the context of the legal
profession, reduce transactional costs and ensure the flow of services, thus rendering
legal services available to clients in all Member States at all times. Furthermore, as
lawyers play an increasingly important role in business transactions, many of which
46
Florence R. Liu, The Establishment of a Cross-Border Legal Practice in the European Union, 20 B.C.
Int'l & Comp. L. Rev. 369 (1997), http://lawdigitalcommons.bc.edu/iclr/vol20/iss2/7
44
involve more than one Member State, the EU increasingly needs lawyers with crossborder practice experience. While supporting these policies, each Member State seeks to
maintain its sovereignty. As such, the EU institutions find themselves in the difficult
position of establishing rules and regulations that will further legal integration while
acknowledging and appreciating the differences among Member States.
Article 59 of the Treaty of Rome grants every EU national the freedom to provide
services throughout the EU. Specifically, Article 59 provides that the "restrictions on
freedom to provide services within the [EU] shall be progressively abolished ... in
respect of nationals of Member States who are established in a [Member] State ... other
than that of the person for whom the services are intended. Included within the scope of
Article 59 is the provision of legal services, that is, the temporary legal activities of a
lawyer of one Member State in another Member State. To this end, Member States may
not discriminate against lawyers who provide legal services, based solely on that
lawyer's citizenship. In addition, Member States must abolish all restrictions that impede
or make impossible the services of a lawyer who is domiciled in that Member State.
While Article 59 governs the temporary provision of services, Articles 52 through 54

grant every EU national the right to establish a permanent practice or business in another
Member State. To this end, the Right of Establishment includes the right to engage
permanently in and carry on non-wage earning activities and to establish and manage
permanent enterprises, particularly companies under civil or commercial law, including
co-operative companies and other legal persons under public or private law. By defining
the Right of Establishment broadly to include legal persons under public or private law,
45
the Treaty of Rome implicitly provides for the development of an EU legal market in
which EU lawyers may establish their legal practices in different Member States.
To implement these goals, the drafters of the Treaty of Rome envisioned a progressive
elimination of restrictions on the right of nationals of one Member State to reside and
practise their professions in another Member State. This progressive elimination of
restrictions also applies to any restrictions on the establishment of agencies, branches, or
subsidiaries by nationals of any Member State established in the territory of any other
Member State. To this end, Member States may not introduce any new restrictions
limiting the provision of services or the right of establishment within the EU.
On a practical level, the Treaty of Rome directs the Council to enforce these goals
through one of two means of legislation: regulations and directives. Regulations are selfimplementing, that is, once adopted by the Council, they become effective in the
Member States. By contrast, directives are not self-implementing and must be
transposed into national law by the national parliaments of each of the Member States.
In addition, directives typically impose a deadline by which all Member States must
ensure that their national laws reflect the directive's contents and goals. Where a
Member State fails to implement properly a directive, the Commission and, in certain
instances, individuals may bring a legal action against that Member State.
At the EU Level, Council Directive 77/249 (Directive 77/249); Council Directive 89/48
(Directive 89/48) and Council Directive 98/5/of 16 February 1998 govern the movement
of EU lawyers among Member States. Directive 77/249 facilitates the temporary
46
provision of legal services by visiting lawyers in a Member State. Directive 89/48

establishes the legal framework within which lawyers may establish permanent practice
in different Member States.
Directive 98/5 allows a lawyer who is qualified in one EU Member State (and who is an
EU national) to practise on a permanent basis in another Member State under their home
professional title. Lawyers wishing to make use of their rights under this Directive must
register with the competent body (usually the local bar) in the Member State in which
they wish to practise, and be bound by the relevant local rules of professional conduct
and insurance and guarantee fund regimes. Once registered, a European lawyer is able to
advise on the law of their home state, international and European law, and also the law
of the host state (subject to certain restrictions)47.
2.5.2. Cross Border Trade in Legal Services in the NAFTA Region

The North American Free Trade Agreement (NAFTA) is a multilateral trade agreement.
Signatory countries currently include Canada, Mexico, and the United States. As Paton48
notes, NAFTA marked the first time that cross-border services were addressed in a
general trade agreement, and were subjected to the principles of non-discrimination and
transparency and on the initial experience of the GATS to entrench basic principles
governing cross-border trade in services and covered all cross border non-financial
47
For
a complete text
on the Directive
98/5
click the
following link http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1998:077:0036:0043:EN:PDF
48
Paton, Paul D., Legal Services and the GATS: Norms as Barriers to Trade (September 1, 2003).
Available at SSRN: http://ssrn.com/abstract=1262054 or http://dx.doi.org/10.2139/ssrn.1262054
47
services, unless such services are specifically excluded. Paton notes that the general
principles governing NAFTA included improvement of national/MFN treatment for all
of its service providers, a commitment to eliminate citizenship and permanent residency
requirements for licensing or certification of professional service providers within two
years from the effective date of NAFTA (by January 1, 1996), failure of which
retaliation by equivalent restriction was permitted. A sector specific annex to NAFTA
(Annex 1210.5) on professional services outlined how the general principles applied to
legal and other professional services49.
NAFTA did not contain, however, binding provisions for the mutual recognition of
qualifications among its signatories. Instead, there are specific provisions for foreign
legal consultants designed to facilitate their practice on the basis of temporary licenses,
assuming they meet local standards, within different jurisdictions.
In 1998, the three NAFTA signatories signed an agreement permitting lawyers from any
one of the three countries to act as foreign legal consultants in the other two member
countries. Lawyers licensed to practise in their home countries are, under this
agreement, allowed to set up offices in the other countries and advise on their home
country law, as well as representing clients in international commercial transactions. It
has been argued that the agreement provides for stricter disciplines on the professional
49
In particular, Annex 1210.5 set out procedures aimed at the development of mutually acceptable
professional standards and criteria. The annex required that licensing be based on criteria, such as
competence, education, experience and professional development.
48
services sector than does the GATS, but that both NAFTA and GATS contain
mechanisms for future liberalization of trade in services.
2.5.3. Cross Border Trade in Legal Services in West Africas ECOWAS

Apart from information from Eastern African Region, there is scanty information on the
progress made in other regional groupings in Africa on the concept of cross border legal
practice. It would appear that the concept is still in its nascent stage given the fact that
the basic frameworks for engaging in it are being established.
The Economic Community of West African States (ECOWAS), which comprises West
African states, appears not to have given effect to the concept despite the fact that
Article 3(2) (d) (iii) of the ECOWAS Treaty makes provision for elimination of
restriction in the movement of factors of production, including restrictions in the
movement of services50. It is hoped that once the ECOWAS establishes the common
market as envisaged by the ECOWAS Treaty it will be in a position to effectively adopt
the concept of Cross Border Legal Practice 51.
Unlike its counterparts in the West and South, the East African region is seen moving at
a modest speed towards the establishment of the Cross Border Legal practice by
establishing the Common Market under the provision of the Treaty for the
50
See generally the provisions of Article 3(2)(d) (iii) of the ECOWAS Treaty at
http://www.comm.ecowas.int/sec/index.php?id=treaty&lang=en (accessed on the 20th March, 2012)

51
For the latest development on the ECOWAS quest to establish the Common market, go to
http://allafrica.com/stories/201102220370.html (accessed on 20 March 2012).
49
Establishment of the East African Community as a vehicle for implementing cross

Border Legal Practice.
2.6.
Concluding Remarks on Chapter Two
By way of conclusion, this chapter attempted to position the trade in legal services as a
commodity in international trade. It showed that with the coming into operation of the
GATT agreement, trade in services was intertwined into the general framework for trade
in the international arena. The chapter also attempted to show that after GATT was
agreed upon, many other regional groupings such as the EU, NAFTA and even
ECOWAS in West Africa have adopted the general framework provided by NAFTA
into the provisions in the treaties for their regional frameworks.
Therefore, one can safely argue that the treatment of trade in services by GATT is the
basic framework from which all other regional arrangements in the world will borrow.
50
CHAPTER THREE
CROSS BORDER TRADE IN LEGAL SERVICES IN THE EAC
Impression TLS got at EALS 2003 AGM discussion on CBLP, was coded language
aimed at unregulated entry by Kenyan lawyers into the Tanzanian market, even before
the harmonization and standardization mechanisms are put in place, being fed by self
interest rather than evolution of a mutually beneficial cross border practice. - Dr.
Gastorn Kennedy52
3.1. Introduction
In this chapter, an examination is conducted to review the extent to which the treaty
framework for the East African Regional Cooperation has adopted the concept of trade
in services and trade in legal services as enshrined in the GATT Agreement. It will also
investigate and analyse if there are any exceptions to the general framework under
GATT. It ends with an examination of what each of the current members of the East
African Community had agreed as commitments towards the cross border legal
framework.
3.2. Cross Border Trade in Legal Services under the 1999 EAC Treaty
In tracing the origin and development of the discussions on the EAC Cross Border
practice one needs to trace the origin and objectives of the EAC which are contained in
Article 5 of the Treaty for the Establishment of the EAC. Ameyo53 notes that the EAC
was conceived to be both an economic and political union with the cardinal objective of
widening and deepening cooperation of Partner States in political, economic and social
52
Gastorn, Kennedy52 in another attempt to position the debate in its right context under the EAC notes:
53
Ameyo, Dan. The Role of Lawyers in the Realization of its Strategic Drives, a paper presented at the
Conference of the East Africa Law Society Conference and Annual General Meeting at Ngurdoto Hotel in
Arusha from 25 27th November, 2011.
51
sectors for the mutual benefit of the EAC Citizens by providing the following under
Article 5(2) of the EAC:
........partner states undertake to establish among themselves and in accordance
with the provisions of this Treaty, a Customs Union, a Common Market,
subsequently a Monetary Union, and ultimately a Political Federation.
Ameyo, notes that by this Treaty provision, the roadmap and destiny of the EAC
integration was defined unequivocally on account of the fact that the process was to
move from a Customs Union54 to a Common Market55 as transitional stages, and then to
a Monetary Union56 and Political Federation57 as the ultimate goal.
54
The Customs Union was set up in 2005.
55
The Common Market Protocol was signed in November 2009 and entered into force in July 2010
following the deposit at the EAC Secretariat by Partner States of the instruments of ratification.
56
Negotiations for a Monetary Union began in January 2011 and a draft protocol is currently under
negotiations which are expected to conclude before the year end. For a comprehensive update on the
progress so far made in negotiations towards monetary union refer generally the following links of the
EAC Website: http://www.eac.int/index.php?option=com_content&view=article&id=1057:eac-urgesgreater-speed-on-monetary-union-negotiations&catid=146:press-releases&Itemid=194 (Accessed on 28th
July 2012).
57
Following directives from the Summit of the Heads of State, the EAC Secretariat was tasked to find
mechanisms to fast track the onset of the EAC Political Federation. A committee of the experts was
formed to inquire from the people whether such a move is feasible. Citizens from Tanzania
overwhelmingly rejected the idea of fast tracking and the idea was abolished.
52
In achieving the objectives contained in Article 5(2), Article 76 of the Treaty as

reproduced below required the Community to establish a common market that will
guarantee the freedom of movement of goods, people, services, capital and the attendant
rights of establishment and residence. Article 76 of the Treaty makes the following
provision:
1.
2.
3.
4.
Article 76
Establishment of a Common Market
There shall be established a Common Market among the Partner States. Within
the Common Market, and subject to the Protocol provided for in paragraph 4 of
this Article, there shall be free movement of labour, goods, services, capital, and
the right of establishment.
The establishment of the Common Market shall be progressive and in
accordance with schedules approved by the Council.
For purposes of this Article, the Council may establish and confer powers and
authority upon such institutions as it may deem necessary to administer the
Common Market.
For the purposes of this Article, the Partner States shall conclude a Protocol on
a Common Market.
The scope and mode of operationalisation of these objectives were provided for under
article 104 which is reproduced herein below:
Article 104
Scope of co-operation
1. The Partner States agree to adopt measures to achieve the free movement of
persons, labour and services and to ensure the enjoyment of the right of
establishment and residence of their citizens within the Community.
2. For purposes of paragraph 1 of this Article, the Partner States agree to
conclude a Protocol on the Free Movement of Persons, Labour, Services and
Right of Establishment and Residence at a time to be determined by the Council.
3. The Partner States shall as may be determined by the Council:
a. ease border crossing by citizens of the Partner States;
b. maintain common standard travel documents for their citizens;
c. reciprocal opening of border posts and keep the posts opened and
manned for twenty four hours;
d. maintain common employment policies;
e. harmonise their labour policies, programmes and legislation including
those on occupational health and safety;
53
f. establish a regional centre for productivity and employment promotion

and exchange information on the availability of employment;
g. make their training facilities available to persons from other Partner
States; and
h. enhance the activities of the employers' and workers' organisations with
a view to strengthening them.
4. The Partner States undertake to co-operate in the enhancement of the social
partnership between the governments, employers and employees so as to
increase the productivity of labour through efficient production.
As rightly noted by the Law Society of England and Wales58, the specific objectives of
the EAC Common Market contained in Article 4(2) of the Common Market Protocol are
to, among other things, accelerate economic growth and development of the Member
States through the attainment of the free movement of goods, persons and labour; the
right of establishment and residence and the free movement of capital and services
(including legal services).
In achieving the above stated objectives, Article 3 of the Common Market Protocol
provided for the core principles that were to guide the process. These principles are to:
a. Observe the principle of non-discrimination of nationals of other Partner States
on grounds of nationality;
b. Accord treatment to nationals of other partner States, not less favourable than the
treatment accorded to third parties;
c. Ensure transparency in matters concerning the other partner states; and
d. Share information for the implementation of this Protocol.
58
Kataganza, N. and Ngonga, T: Final Report on the Study of the Constraints and obstacles to
liberalization of the Legal Services Regime in the East African Community, December 2010
54
Therefore, in the spirit of the EAC Treaty and the EACs Common Market Protocol,
every qualified legal service provider who is a citizen of any East African Partner state
is granted the freedom to provide services59 throughout the EAC. Specifically, Article
16 of the Protocol guarantees the free movement of services supplied by nationals of
Partner States and the free movement of service suppliers who are nationals of the
Partner States within the Community. In addition, Article 23 of the Protocol states that
the implementation of Article 16 shall be progressive and in accordance with the
Schedule on the Progressive Liberalization of Services, specified in Annex V to the
Protocol.
3.3. The EAC Common Market Protocol and Legal Services

Under Article 16 of the Common Market Protocol, free movement of services supplied
by nationals of Partner States and the free movement of service suppliers who are
nationals of the Partner States within the Community are guaranteed 60.
59
According to a document prepared by the Ugandan Ministry of East African Community Affairs
(MEACA) entitled The Common Market Protocol Explained on pg 10, free movement of services means
that service providers are able to supply their products to consumers in Partner States and must be given
equal treatment to domestic suppliers in those markets. Service providers are therefore able to supply their
products either from the home country to the host country using telecommunications systems (e.g. the
internet) or through the establishment of a business in the Partner State (e.g. a branch of subsidiary).
60
Article 16 (1) provides for the following:

16 (1)
The Partner States hereby guarantee the free movement of services supplied by
nationals of Partner States and the free movement of service suppliers who are
nationals of the Partner States within the Community.
16(2)
The free movement of services shall cover the supply of services:
55
Article 23 provides for the implementation, which shall be progressive, and in

accordance with the Schedule on the Progressive Liberalisation of Services, specified in
Annex V to the Protocol under the following key guidelines:
i.
Limitations on number of service sectors:
The EAC Partner States agreed that the opening of service sectors within the Common
Market would be progressive. To support this approach only 7 out of a total of 12
service sectors have been included in the Protocol. The sectors included are Business
Services, Communication Services, Distribution Services, Education Services, Financial
Services, Transport Services and Travel and Tourism Services. Within these sectors,
specific subsectors have been liberalised according to each Partner States preferences
and therefore the same sectors and sub-sectors may not be liberalised across the entire
region. Businesses must confirm that their service sector is liberalised in the Partner
State in which they wish to supply a service. The opening of the remaining five sectors
has been committed to by all Partner States but a timeframe for negotiation has not yet
been agreed.
(a) from the territory of a Partner State into the territory of another Partner State;
(b) in the territory of a Partner State to service consumers from another Partner State;
(c) by a service supplier of a Partner State, through commercial presence of the service
supplier in the territory of another Partner State; and
(d) by the presence of a service supplier, who is a citizen of a Partner State, in the
territory of another Partner State.
56
ii.
Timeframe for implementation
Those service sectors and subsectors which are covered by the Protocol will be
liberalised according to the elimination date specified for each sub-sector. The
elimination date has been set according to the preference of each Partner State and
varies from between 2010 and 201561.
iii.
Limitations on modes of supply
Services can be supplied in four ways (modes) which are determined both by the
location of the supplier and the consumer. Annex V of the EAC Common Market
Protocol documents the commitments of all the Partner States in all four modes of
supply. However, all Mode 4 commitments (temporary movement of natural persons)
refer to Annex II on the free movement of workers. Mode 3 commitments (commercial
presence) are also covered in some respects by the Right of Establishment as detailed in
Part E and Annex III of the Protocol. The free movement of services in these modes is
therefore subject to the limitations specified under the other relevant sections of the
Protocol (e.g. only some occupations are covered in movement of workers).
Legal Services being one of the services to be liberalised is also included as part of the
services to which Annex V of the protocol caters for. To achieve the opening up of the
legal services market, each EAC country gave its commitments to open up its industry
as shown in Table 1.
61
In the case of Legal Services all Partner States with the exception of Tanzania have indicated 2015 as
the year when all restrictions in relation to CBLP will be removed.
57
Table 1: East African Partner States Schedule of Commitments in Respect of Legal Services
Country
BURUNDI
KENYA
UGANDA
(Sub)Sector
(CPC
Code)
Legal
Services
(CPC 861)
Legal
Advisory
and
Representati
on Services
in Judicial
Procedures
Concerning
other Fields
of
Law
(CPC
86119)
Legal
Services
(CPC 861)
Market Access
Eliminati
on Date
(1) None
(2) None
(3) Unbound
(4) In accordance
with the Schedule 2015
on
the
Free
Movement
of
Workers
(1) None
(2) None
(3) None
(4) In accordance
with the Schedule 2010
on
the
Free
Movement
of
Workers.
(1) None
(2) None
(3) Law firms are
to be partnerships
in order to have a
legal recognition
of their operations
since they cannot
2015
fall
under
companies or sole
proprietorship.
Practitioners
trained or coming
from
Universities/countr
ies that do not
National
Treatmen
t
(1) None
(2) None
(3) None
(4)
In
accordanc
e with the
Schedule
on
the
Free
Movement
of
Workers
(1) None
(2) None
(3) None
(4)
In
accordanc
e with the
Schedule
on
the
Free
Movement
of
Workers
(1) None
(2) None
(3)
Branches
not
allowed
for Legal
advice on
both
HOST
and
HOME
country
laws and
local
member of
Eliminati
on Date
2010
2010
2015
58
Country
(Sub)Sector
(CPC
Code)
Market Access
Eliminati
on Date
practise common
law
are
not
recognised.
(4) In accordance
with the Schedule
on
the
Free
Movement
of
Workers
RWANDA
Legal
Services
TANZANI
N/A
A
(1) None
(2) None
(3) None
(4) In accordance
with the Schedule
on
the
Free
Movement
of
Workers.
No commitment
National
Eliminati
Treatmen
on Date
t
an
internation
al network
of
profession
al services
firms
cannot use
the
networks
1) None
2) None
3) None
4)In
accordanc
e with the
2010
Schedule
on
the
Free
Movement
of
Workers.
No
No
commitme commitme
nt
nt
2010
No
commitme
nt
Source: The East African Common Market Protocol Annex V

Key to Interpretation:
(1) Means Mode I: the supply of services from the territory of a Partner State into
the territory of another Partner State.
(2) Means Mode II: the supply of services in the territory of a Partner State to
service consumers from another partner State.
(3) Means Mode III: the supply of services by a service supplier of a Partner State,
through the commercial presence of the service supplier in the territory of another
Partner State.
(4) Means Mode IV: the supply of the services by a supplier of a Partner State,
through the presence of a natural person of a Partner State in the territory of another
Partner State.
59
None: this means no restriction in market access and national treatment in the subsector under consideration.
Unbound: this means no commitment to fully liberalise the sub-sector until the
mentioned date when there will be a full commitment or the commitment undertaken
does not take effect until the mentioned date.
From the table above the following information can be deduced:i.
Burundi agreed to liberalise its legal services sector by eliminating all market
access restrictions by 2015 although at present it will allow Providing no
restriction on market Access sector by 2015;
ii.
Kenya agreed to liberalise only the legal advisory and representation services in
judicial procedures concerning other fields of law by 2010.
iii.
Rwanda agreed to liberalise its legal sector by 2010;
iv.
Uganda Agreed to fully liberalise its legal sector by 2015 and
v.
Tanzania didnt make any commitment with regard to legal services.
3.4. Concluding Remarks

From the analysis given above, it is clear that almost all EAC Partner States are
currently desirous to engage themselves in the opening up of their legal services market
under the Common Market framework by providing different timeframes for the
liberalisation of the sector. More importantly though, Tanzania one of the key partner
states in the EAC integration process, didnt give specific commitments to open up its
60
legal services market nor did it provide a timeline. Yet more sadly, there is no
documented reason as to why such a decision was made62.
This decision by the United Republic of Tanzania calls for an interrogation to discover
what could be the reason for non declaration of commitment and interrogation into the
implication and effects of the decision on the legal practitioners and the legal services
market.
62
In an attempt to find a concise reason as to what influenced the decision, the researcher consulted the
Ministry of East African Cooperation and the Attorney General but discovered that such a document
didnt exist. Through further checks with other key stakeholders such as the Tanganyika Law Society and
the Faculty of Law of the University of Dar es Salaam, the researcher was made aware that such a
document has not been seen although there was awareness that such a decision was taken.
61
CHAPTER FOUR
ANALYSIS OF THE CURRENT LEGAL AND REGULATORY
FRAMEWORK FOR CROSS BORDER PRACTICE
The AG (of Kenya) will allow that law to be operative, if he is satisfied that our Kenyan advocates
will also have similar access to practice law in Uganda and Tanzania. There must be an element of
reciprocity. I know that through the EALS, the Governments of Tanzania and Uganda are taking steps
towards that direction. It is only when they put it in place, that I will allow that particular section of
the law, to be operative in Kenya Hon. Amos Wako, Attorney General of Kenya63
4.1. Introduction
In the preceding chapter, an attempt was made to position the current state of affairs in
relation to the negotiations and implementation of the various provisions of the East
African Common Market Protocol in relation to legal services market. It was further
pointed out that despite the fact that Tanzania is a key partner in the EAC integration
process; it is the only state out of the five that has not indicated any commitment to open
up its legal services market.
This chapter seeks to extend the discussion in Chapter 3 on cross border practice and
analyse the current legal framework in Tanzania pertaining to lawyers practice. In
doing so, the chapter will point out that Tanzanias current legal framework is very
flexible in allowing practitioners from other jurisdictions to practice in Tanzania. By
pinpointing this flexibility, the chapter will attempt to position Tanzanias decision to
refrain from indicating commitment to open up its legal services market to other factors
and assumptions. This will lead to the conclusion that perhaps the reasons for
63
Quoted in page 699 of the Kenyan National Assembly Official Record (Hansard) of 23rd April 2002
when he was moving a motion to amend the Advocates Act of Kenya with a view to making CBLP
applicable in Kenya. The AG was responding to concerns raised by several members of parliament on the
fact that unilateral opening of the Kenyan Legal Services to CBLP would hurt unless its reciprocated.
62
Tanzanias position not to commit itself to open up its legal services market was
influenced by other factors which are not entirely legal and not solely on the basis of the
legal framework. Before concluding the chapter, an attempt will be made at discussing
some of these apparent fears and whether they may be justified in an East African
context characterised by the need to implement Common Market Protocol.
4.2. The Current Legal Framework for the Legal Services Profession in Tanzania
The current legal framework governing practice of law in Tanzania is mainly contained
in the Advocates Act and the Law School of Tanzania Act and to, a lesser extent, the
Tanganyika Law Society Act.
4.2.1. The Denning Report as the basis for the current Legal Framework
The legal framework traces its history partly to the pre-independence era, especially to
the recommendations contained in the Royal Committee on Legal Education for
Students from Africa popularly known as the Denning Committee 64. The Denning
Committee being guided by its Terms of Reference made the following key
recommendations in relations to East Africa65:64
The name is derived from the fact that it was chaired by Lord Justice Denning. The committee was
formed on account of shortcomings noted in the training schemes available in England for students from
Africa. The Committee was therefore charged with the task of inquiring into the problems of legal
education for Africa and making recommendations for a suitable training scheme.
65
For a comprehensive understanding of the recommendations, read generally the Royal Committee on
Legal Education for Students from Africa (1960): Cmnd 1225
63
i.
The establishment of a faculty of law within the University College of East

Africa which shall be Dar es Salaam66;
ii.
Recognition of a degree in law from a university as a basic qualification entitling

a person who possesses it to practice law in any of the territories;
iii.
Recognition of the degree in law from the University College Dar es Salaam as a
basic qualification across all East African Territory;
iv.
That no one should be allowed to practice law in any East African Territories
unless he or she has had one year practical training in addition to the degree;
v.
That each territory should set up its own School of Law; and
vi.
Each territory should have its own Council for Legal Education responsible for
education in Law which shall be coordinated at the level of East Africa by the
Central Law Advisory Board.
In further implementation of the recommendations by Denning Committee, the

Advocates Ordinance of Tanganyika was amended in 1963 to provide for the
establishment of the Council of Legal Education and the recognition of qualifications
from the University College of East Africa.
66
These recommendations by the Denning Committee were taken onboard and in October 1961, the
Faculty of Law of the University College Dar es Salaam was established through the University College,
Dar es Salaam (Establishment) Act, 1961. The new university though located in Dar es Salaam was to
cater and actually catered for students from territories of Uganda, Zanzibar, Kenya and Tanganyika. In
1963, the University of East Africa was inaugurated with only one faculty, the Faculty of Law in Dar es
Salaam. Other faculties were subsequently established at Nairobi and Makerere University Colleges.
64
4.2.2. The Advocates Act and role of institutions created under it in the Advocates
Admission Process
The Advocates Act 67 is perhaps the most important of all the laws regulating the
operations of advocates in Tanzania. It makes provision for the qualifications of persons
who may be admitted as advocates; their manner of admission and the mechanism to
discipline and regulate the behaviour of errant advocates. In order to further the smooth
functioning of the Advocates Act, several institutions are created and conferred with
powers. These institutions include the Council for Legal Education which is conferred
with the power to interview and examine the aspirants who want to become advocates;
the office of the Chief Justice which is conferred with the power of admission of
advocates upon satisfaction of competence and suitability of the candidates; and the
Advocates Committee which has been conferred with power to discipline errant
advocates. A detailed description of the function of each organ established under the
Advocates Act is given hereunder.
4.2.2.1.
The Role and functions of the Council for Legal Education in the
Admission Process
The Council of Legal Education (hereinafter called the Council) is a statutory body
established under Section 5A of the Advocates Act. It is composed of The Chief Justice
67
Chapter 341 of the Revised Laws of Tanzania, 2002 Edition
65
or his representative68, who sits as the Chairman of the Council; The Attorney General
or his representative; The Dean of the Faculty of Law of the University of Dar es
Salaam or his representative and two members elected by the Tanganyika Law
Society69. The functions of the Council as provided under Section 5B of the Advocates
Act are:
i.
to exercise the functions conferred upon it by or under the Advocates Act or

any other law70;
ii.
to exercise general supervision and control over legal education in Tanganyika

for the purposes of this Act (Advocates Act)71; and
68
In the recent past, the Chief Justice has not sat in the Council but has elected the Principal Judge who is
the Head of the High Court to represent him in the Council.

69
According to TLS Acting Chief Executive Officer, Mr. Stanslaus Nyembea, the TLS usually elects
during its Annual General Meeting two of its senior members to represent it in the Council. However, due
to their exemplary performance for the past ten years, the same members have constantly been re-elected
to represent the TLS in the Council.
70
A clear instance of application of this provision is the role conferred upon the Council by Section 3 of
the Law School of Tanzania Act.. In the former times, an advocate who wanted to appear in the
Commercial Court (during the early days of its inception) was required by Rule 2A of Order III of the
Civil Procedure Code, Cap 33 R:E 2002, to obtain certification from the Council that he is knowledgeable
in commercial law and commercial practice. According to Mr. Jonathan Mbuga, a practicing advocate I
interviewed in Dar es Salaam during the course of this research this requirement has since been abolished.
71
According to Dr. A.M Mapunda, a member of the Council of Legal Education,, the Council of Legal
Education acting through this broad mandate, spearheaded the process of having a standard curriculum for
the teaching of law in Tanzania by prescribing the standard curriculum that was incorporated in the
National Legal Training Curriculum. This standard curriculum which was a key component in the Key
Result Area No. 4 of the Legal Sector Reform Programme in Tanzania is now in place although the
66
iii.
to advise the Government in matters relating thereto.
Although criticised by Twaib72 as having minimal role in relation to legal education and
training, the Council other than its main preoccupation of examining those who have
petitioned the Chief Justice for admission to the Roll of Advocates, we are increasingly
noticing the Council performing other core functions that have been bestowed by the
Advocates Act on it despite facing budgetary restrictions. Of recent, the Council has
conducted inspection visits in various universities offering law courses to inspect quality
of teaching staff and available facilities73.
4.2.2.2.
The Role and Function of the Office of the Chief Justice in the
Admission Process
After passing the interview of the Council of Legal Education, a candidate must satisfy
the Chief Justice that he is, in several respects, a person suitable to occupy the office of
advocate. Successful candidates passed by the Council are invited for this second
monitoring aspect is managed under the auspices of the Tanzania Commission for Universities (TCU) or
the National Council for Technical Education (NACTE).
72
Twaib, p. 178
73
According to information relayed by Dr. Mapunda, a ouncil member, the Council has already conducted
inspection visits at Makumira University of Arusha and Tumaini University and Ruaha University both
from in Iringa.
67
interview at any time of the year 74. The Chief Justice also requires certain conditions to
be fulfilled. If for some reason, he is not satisfied that the requirements have been met,
he may refuse to admit the candidate concerned. The practice shows these conditions to
be: an appropriate office, the availability for the candidate's use of a reasonable
collection of legislations and law books, and a typewriter. The Chief Justice must also
be satisfied that the candidate is duly qualified, and that he possesses an adequate
knowledge of the language of the courts.
The Chief Justice' interview is thus aimed at satisfying him as to the suitability of the
candidate for practice as an advocate. The candidate has to prove that he has an office, a
good standard library, and a typewriter. The most important acquisition here is statutes.
For, as Nyalali, CJ (as he then was) put it:
Just like anyone who wants to be a farmer in this country can't be a true farmer
without possessing at least a hand hoe, so anyone who wants to practise law in our
courts can't truly do so without having at least the revised law plus subsequent
amendments75.
Following the passing of the Chief Justice Interview, the applicant will be required to
await the admission ceremony and will be required to complete other formalities such as
74
although practice shows that these interviews are usually held during the months of May and November
so that the interviews coincide with the traditional admission ceremonies which are usually held in June
and December, which normally take place once a year between July and September.
75
Twaib, ibid. p. 181
68
making an application to join the Tanganyika Law Society76. On the date set for the
admission ceremony, all successful candidates would gather at a predetermined location
and thereon would be called to the bar and sign the Roll of Advocates and be given
practising certificates by the Chief Justice which entitle them to formally practice law as
Advocates of the High Court and courts subordinate thereto save for primary courts.
4.2.2.3.
The Role and Functions of the Advocates Committee in the Post

Admission Process of an Advocate
Following the admission into the Bar, all advocates automatically fall under the
jurisdiction of another institution established under the Advocates Act known as the
Advocates Committee. The Advocates Committee is the main disciplinary authority for
advocates. It is established under the provisions of Part II of the Advocates Act77. It is
composed of a Judge of the High Court of the United Republic nominated by the Chief
Justice who acts as the chair person; The Attorney-General, or the Deputy Attorney
General or Director of Public Prosecutions and one practising advocate nominated by
the Tanganyika Law Society.
The Advocates Committee is charged with the task of hearing and determining any
application by an advocate himself or any person to remove the name of any advocate
76
According to Ms. Mariam Othman, TLS Programme Officer responsible for Member Services, these
formalities includes the payment of subscription fees to become members of the Tanganyika Law Society
and East Africa Law Society.
77
Advocates Act, Cap 341 RE 2002, Section 4 and 5
69
from the Roll78. It is also mandated to hear and determine any allegation of misconduct
made against any advocate by any person79. The Advocates Committee, therefore, is the
main body with original jurisdiction in matters concerning advocates' discipline and any
appeal from the decisions of the Committee lie to the High Court of Tanzania, sitting as
a Full Bench of not less than three Judges.
The lodging of complaints with the Advocates Committee is covered by the provisions
of the Advocates (Disciplinary and Other Proceedings) Rules80. An application against
an advocate must be made in prescribed form, supported by an affidavit, and sent to the
Secretary of the Committee. However, the Attorney-General may move the Committee
into action by any complaint made against an advocate brought to his notice in any
manner whatsoever, whether or not in prescribed form81.
78
Ibid Section 13(1)(a) and 13(1)(b)
79
Ibid section 13(1)(c)
80
These were introduced vide G.N. No. 135 of 1955
81
In Principle, any person can complain to the Committee directly, or through any one of its members.
The practice, however, has been that most complaints are channelled through the Secretariat of the
Tanganyika Law Society. The Secretariat will then forward the complaints to the Council of the Society,
which will make a preliminary inquiry to ascertain whether the matter should be forwarded to the
Secretary of the Advocates Committee.
70
4.2.3. The Law School of Tanzania Act

Starting from 2007, a parallel system to that of the Council of Legal Education of
preparing qualified individuals for enrolment as Advocates was introduced in Tanzania
through the enactment of the Law School of Tanzania Act82 which established the Law
School of Tanzania and thus bringing it at par with EAC Partner States of Kenya and
Uganda83. The establishment of the Law School of Tanzania was an important milestone
towards improving practical skills84 of aspiring lawyers in the country85 and was
established with a view to do away with the requirement to undergo internship at the
82
Act No 18 of 2007. The Act came into force on 2nd May 2007
83
The establishment of the Law School of Tanzania has now placed Tanzania at par with its EAC
counterparts of Kenya and Uganda who had established theirs a long ago. The Kenya Law School was
established in 1963 while the Law Development Center of Uganda was established in 1970. Rwanda also
established the Institute of Legal Practice and Development (ILPD) in 2006 to serve as a national and
regional centre of reference for practical legal training.
84
Before the establishment of the School, aspiring lawyers were trained in practical skills through the
internship program run by the Attorney Generals Chambers. Later on some Universities adopted the
Externship system to impart practical skills to aspiring lawyers. These systems have now been replaced by
the Practical Legal Training Programme to be run by the School. For a historical perspective of the
previous system of internship, read generally Rwelamira, M (1977) The Tanzania Legal Internship
Programme: A New Horizon in Legal Education, African Legal Studies. The article can be accessed
through http://www.jlp.bham.ac.uk/volumes/15/rwelamira-art.pdf (Accessed on 28th July 2012).
85
It is expected that gradually the functions of examining suitability of the competency of the applicants
for the enrollment of Advocates will devolve from the Council of Legal Education to the Law School of
Tanzania.
71
Attorney Generals Chambers or externship programmes86. The School is a body

corporate under the Ministry of Constitutional Affairs and Justice. It is an independent
organ with its own Governing Board. In that regard, Section 4 of the Act provides that
the School shall have perpetual succession and an official seal in its corporate name be
capable of suing and being sued.
The Law School was established to perform the following functions amongst others:i.
Offer, conduct, manage and impart practical legal training programmes as may
be prescribed by the Council;
ii.
Promote and provide opportunities and facilities for the study of and for the
training in legal practice and allied subjects;
iii.
Conduct examinations and grant awards of the Governing Board in practical

legal training and allied subjects; and
iv.
Establish relationship or association with other colleges, and institutions both

nationally and internationally.
86
Indeed as transitional measures, the Law School of Tanzania Act under Section 28 exempted all law
graduates who have undergone internship or externship from the requirements of the Act.
72
Following upon its mandate of offering practical legal training, the Law School of
Tanzania has proceeded to prepare practical oriented course materials and conduct
training of lawyers using the facilities offered by the School of Law of the University of
Dar es Salaam. As at the time of writing this dissertation in June, 2012, the Law School
of Tanzania had already admitted 10 cohorts of students with an average number of 200
students per cohort.
4.2.4. The Tanganyika Law Society Act

We have already seen that one of the preconditions for enrolment as an advocate of the
High Court of Tanzania is joining and becoming a member of the Tanganyika Law
Society (TLS). Therefore, this places the position of the TLS as one of the important
institutions in the regulation of lawyers practice in Tanzania. The Tanganyika Law
Society Act87 which is the enabling legislation for an organisation of lawyers who are
plying their trade in Tanzania Mainland establishes under Section 3 the TLS as a
statutory organ to oversee the practice and regulation of lawyers. The TLS is a body
corporate with perpetual succession and a common seal. It has powers to sue and be
sued in its corporate name88.
87
Cap 307 R.E. 2002
88
Ibid, section 3
73
The TLS was established with several statutory objectives89, including:i.
To maintain and improve the standards of conduct and learning of the legal
profession in Tanzania;
ii.
To facilitate the acquisition of legal knowledge by members of the legal

profession and others;
iii.
To assist the Government and the Courts in all matters affecting legislation and
administration and practice of the law in Tanzania;
iv.
To represent, protect and assist members of the legal profession in Tanzania as

regards to conditions of practice and otherwise; and
v.
To protect and assist the public in Tanzania in all matters touching, ancillary or
incidental to the law.
Despite these broad objectives, TLS has placed more emphasis on improvement of
professional conduct, education (for the profession itself and the public), and
assistance to the Government and the public on matters of law 90. Like other
professional organisations, the Tanganyika Law Society also aims at securing the
89
Ibid, section 4
90
Twaib, p.220
74
material benefits and social status of professionalism, acquiring the privilege of selfregulation, and serving as the lawyers' watchdog of professional interests91.
As noted by Twaib92, The Law Society's discharge of the above functions has been
varied. As a body, it has been relatively active in its defence of the rights and interests of
advocates. It has been exercising strong control over supply of services. Using this
power, the Society has been able to define and defend the jurisdictional boundaries of its
members' monopoly93.
As noted earlier, The Tanganyika Law Society is the bar association of Tanzania
Mainland. Practising advocates are the main members of the Tanganyika Law Society
although the society is also open for membership to virtually all lawyers in Tanzania
Mainland including honorary members.
By virtue of the provision of Section 7(1) of the Tanganyika Law Society Act, all
advocates in Tanzania are mandated to be members of the TLS94 and the East Africa
91
Twaib, p. 219
92
Twaib, ibid
93
Ibid. As noted by Twaib, some of the methods employed have been limitations on fees and costs, self
promotion, the suppression of intra-professional and para-professional competition. It is submitted that

this power will be very useful in regulating EAC cross border legal practice in Tanzania.
94
The mandatory provisions of the TLS Act are couched in the following terms:
75
Law Society (EALS)95. Once conferred with membership in the TLS an advocate can
only cease to be a member upon his own decision not to take up a practising certificate
or to apply for his name to be removed from the Roll96. So long as he continues to
practise, he has no "election, admission, or appointment" but to be a member of the
Society. This obligation is however reciprocated by a provision which makes it
compulsory upon the Society to accept as a member any person who holds a valid
practising certificate. The Society cannot expel him from membership as long as he is
7 (1) Every advocate who has in force a practising certificate shall without election, admission
or appointment, become a member of the Society from the date on which the practising
certificate is issued to him and be subject to any provision of the law for the time being affecting
that member:
Provided that every advocate to whom a practising certificate is issued before the first
day of February of each year shall, if he was an advocate on the first day of January of that
year, be deemed to have been a member of the Society as from the first day of January of that
year.
(2) Every advocate who becomes a member of the Society under subsection (1) shall, subject to
the provisions of subsection (3), remain a member until the end of the current year.
(3) When an advocate who is a member of the Society by reason of the provisions of subsection
(1) has his name, whether at his own request or otherwise, removed from the Roll, shall
immediately cease to be a member of the Society.
95
It would appear that membership in the EALS is also mandatory on account of the subscription payment
arrangement within the TLS. A TLS member will be deemed to have fully paid his subscription if at the
same time he pays the EALS Membership fee. The same arrangement doesnt apply for International Bar
Association (IBA) and the SADC Lawyers Association (SADCLA) wherein TLS is a corporate member
and TLS members are not required to subscribe as members.
96
Ibid, section 7(3)
76
entitled to practise97. Consequently, an advocate's membership of the Society is

inextricably bound up with his right to practise98.
4.3. Qualification Criteria for Admission to Practise as an Advocate in Tanzania

The presence of two different laws governing the process of admission of advocates99 in
Tanzania necessarily requires presence of two different admission criteria for the
admission of an advocate in Tanzania. These processes are the admission and
qualification criteria under the Advocates Act and qualification and admission criteria
under the Law School of Tanzania Act to which we now turn.
4.3.1. Qualifications and Admission to Practise under the Advocates Act

Any person who aspires to practice law in Tanzania 100 as an Advocate through the
avenue provided by the Advocates Act is required to fulfil the minimum conditions
97
According to Mr. Nyembea, Stanslaus, the Acting TLS CEO, there are circumstances which may deny
an advocate the right to practice and thereby lose TLS Membership. These circumstances include when an
order is made following disciplinary measures against him to have his name removed from the Roll or
when he is suspended from practice; his membership is also suspended for the same period.
98
Therefore, by implication it appears that any person who will get the permission to practice in Tanzania
under CBLP arrangement must be registered as a member of the Tanganyika Law Society.
99
Once admitted as an advocate he will assume the title of An Advocate of the High Court of Tanzania
and Courts subordinate thereto save Primary Courts and will be entitled to practice in all courts
subordinate to the High Court save for the Primary courts where advocates are restricted by statute to
practice.
100
Including any qualified person from Member States of the East African Community
77
prescribed by Section 8 of the Advocates Act and the regulations made under it known
as the Advocates (Professional Requirements) Regulations101. Under this process, the
procedure for admission to practice is as follows:i.
The applicant (who will henceforth be known as the petitioner) will apply to be
admitted as an advocate by presenting a petition to the Chief Justice adducing
evidence that he is qualified to practice law in Tanzania on account of
possession of either the following key professional qualifications:a. He is a holder of a degree in law granted after examination by the
University of East Africa or the University of Dar es Salaam or by such
other university or other institution as may be recognised by the Council
for Legal Education102 or,
b. He is a legal practitioner (by whatever name called) and thereby has a

right of audience before any court having unlimited jurisdiction in civil
and criminal matters in any Commonwealth country or in any other
country designated by the Minister for the purposes of this section; or
101
These Regulations were published as G.N. No. 395 of 1963
102
According to information relayed to the researcher by Mapunda, A.M, a member of the Council for
Legal Education during the conduct of this research, the Council for Legal Education , has adopted a
practice of relying on the certificate of accreditation issued to universities by the Tanzania Commission
for Universities (TCU) to recognise qualifications from other universities.
78
c. If he is a Solicitor of the Supreme Court in England, Northern Ireland or

the Republic of Ireland, a Writer to the Signet, a Solicitor in the Supreme
Court of Scotland, or a person admitted or deemed to have been admitted
as a solicitor under the Solicitors (Scotland) Act, 1933, of the United
Kingdom, or if he is the holder of any similar qualification which is
accepted by the Council as a professional qualification for the purposes
of this subparagraph;
ii.
The petitioner shall, in addition to the acquisition of professional qualification,

be required to adduce in the petition, evidence to the effect that:a.
He has complied with such requirements (whether relating to

instruction or examination or otherwise) as to the acquisition of
professional experience as may be specified in regulations made
hereunder by the Council or he qualifies for an exemption103; or
b.
He has been in continuous practice as an advocate in Kenya, Uganda

or Zanzibar during the five years immediately preceding his
application.
103
The Council of Legal Education has the mandate under Section 8(1A) of the Advocates Act to dispense
with the requirements under this provision and has used its mandate on several occasions for deserving
cases mostly involving people who have served in the judiciary.
79
iii.
The petitioner will also attach to the petition a certificate and testimonial of his
character104.
iv.
That following the presentation of the petition, the petitioner will be invited to
appear and expected to pass a viva voce interview105 before the Council for
Legal Education106 to demonstrate his/her competence and mastery of the
language of the court as well as sufficient grasp of relevant laws of Tanzania and
sometimes international laws107.
104
In practice this has been prepared by a mentor of the petitioner who will prepare a confidential letter
addressed to the Chief Justice recommending the acceptance of the petitioner as a worthy candidate for
admission as an advocate.
105
The interview of the Council of Legal Education was first introduced in the late 1970s, in response to a
desire to ensure competence before admission. The purpose of the interview of the Council of Legal
Education is to determine whether the petitioner has sufficient knowledge of the law applicable in
Tanzania, the practice and procedure obtainable in the country's courts, and sufficient knowledge of the
language of the court. The interview is oral. The candidate is examined on a variety of general and
specific substantive and procedural laws in which he is required to demonstrate mastery. For a
comprehensive reading of the process of the interview and how admission was determined prior to the
1970s, read Twaib, F (1997) The Legal Profession in Tanzania p.179.
106
Although this function as contained in the Advocates Act is conferred to the Chief Justice, the Chief
Justice has in practice been performing this function through the Council of Legal Education.
107
During the interview, each member of the Council is given an opportunity to ask the candidate a
specific number of "principal" questions, usually three. The questions asked in the interview basically
seek to establish the candidate's general knowledge of the law especially procedural laws, understanding
of legal issues, professional ethics, and language of the courts.
80
v.
Immediately after the interview, the Council will excuse the applicant, deliberate
on the responses given and issue a verdict that the candidate has passed or failed
the interview. If he has failed, the Council will issue a determination as to the
time when the applicant will appear again before the Council for the next
attempt.108
vi.
Following the successful completion of the Council for Legal Education

Interview, the petitioner will appear before the Chief Justice for a suitability
interview/discussion which mainly focuses on the candidates character, career
aspirations and suitability for a career in the legal profession.
vii.
Finally, after the interview, the petitioner will be admitted to the Bar at a special
ceremony that is presided by the Chief Justice and attended by members of the
legal fraternity and other legal stakeholders wherein the Chief Justice will
formally hand over practising certificates to the newly admitted advocates.
viii.
Immediately after being presented with the admission certificate, the newly
admitted advocate is required to append his signature to his name in the Roll of
Advocates in the presence of the Registrar of the High Court Registrar.
108
This duration has been variable depending on the competence of the person as determined by the
Council. The author knows of several colleagues who have had to wait until after 24 months before they
can attempt the exam again.
81
4.3.2. Qualifications to Practice as an Advocate under the Law School of

Tanzania Act
Qualifications for admission to the Law School of Tanzania are laid down under Section
11 of the Law School of Tanzania Act and Section 3 of the Law School of Tanzania
(Admission, Fees and Conduct of Practical Legal Training) Rules109. Under Section 11
of the Law School of Tanzania Act, a person is eligible to be admitted as a student if he
has obtained:
i.
A bachelor degree in law or
ii.
Other qualifications from an accredited institution which the Council [of Legal
Education) considers to be equivalent to a bachelor degree of law 110.
Further and more elaborate qualification criteria for admission are provided by the Law
School of Tanzania (Admission, Fees and Conduct of Practical Legal Training) Rules,
2011. Under Section 3(1) of the said rules, an applicant will be considered for admission
if he has any of the following minimum qualification:
i.
A holder of a Bachelor of Laws Degree or a person who has become eligible for
the conferment of the Bachelor of Laws Degree of an accredited higher
education institution in Tanzania Mainland;
109
Government Notice No 173 published on 17th June 2011
110
These qualifications, as a matter of practice, are those offered by institutions accredited by the
Tanzania Commission for Universities (TCU).
82
ii.
A holder of a Bachelor of Laws Degree or a person who has become eligible for
the conferment of the Bachelor of Laws degree of a higher education institution
recognised in Tanzania and approved by the Council [of Legal Education]; and
iii.
Equivalent qualifications approved by the Council of Legal Education obtained

from any institution within or outside Tanzania111.
In addition to the above mentioned minimum criteria, a candidate is expected under the
provisions of Section 3(2), to have passed the following core subjects at the Bachelor of
Laws Degree namely: Criminal Law and procedure; Legal Method; Constitutional law;
Law of contract; Law of torts; Land law; Civil procedure; Law of business associations;
Family law; Public international law; Tax law; Administrative law; Labour law and
Jurisprudence112. After a continuous and uninterrupted study for one academic year,
which is inclusive of practical training and examinations, all students who may have
passed all their examinations are conferred a Postgraduate Degree in Legal Practice113.
111
It should be noted that under this criterion, even a student with foreign qualification or foreign origin is
eligible to register and pursue studies at the Law School of Tanzania. The only distinction will be that the
foreign national will be required to pay a different fee on account of requirements of Section 9 of the Law
School of Tanzania (Admission, Fees and Conduct of Practical Legal Training) Rules, 2011.
112
The rules under Section 3(3) makes it a requirement for a person who didnt undertake any of the
above mentioned core subject to register, pursue and pass the core subject unless exempted, upon
presentation of sufficient reasons by the Governing Board in Consultation with the Council for Legal
Education as provided by Section 3(4).
113
Law School of Tanzania Act Section 12(2)
83
The conferment of the Postgraduate Diploma in Legal Practice shall qualify and entitle
the holder to practice as an advocate of the High Court and courts subordinate thereto or
employment in the public service subject to obtaining clearance from the Chief
Justice114.
4.4.
Other avenues available to practice in Tanzania
Apart from the two main routes for gaining admission to practice in Tanzania, the
Advocates Act has also empowered the Chief Justice discretionary powers to admit
practitioners including foreigners to practice law in Tanzania115. This is done through
granting of special licence to conduct a particular case 116 or if he qualifies, to be an
advocate in Zanzibar, Kenya and Uganda and has been in continuous practice for five
years117.
114
Ibid, section 12(3)
115
The Chief Justice has on several occasions granted a temporary license to advocates from other
jurisdictions to appear and litigate particular cases. One such case for which the author is aware is the case
of Mvita Construction Company Versus Tanzania Harbours Authority, Civil Appeal No. 94 of 2001
(unreported) wherein the Chief Justice exercised his discretion and granted two advocates from Kenya,
who were also on the Roll of Advocates in Zanzibar, to appear and address the Court of Appeal. The court
of Appeal approved the exercise of this discretion subject to the direction for the licensees paying the
necessary fees to the Registrar of the High Court of Tanzania.
116
117
Section 39(2) of the Advocates Act
It should be noted and emphasized that the Court of Appeal speaking through Mrosso, J.A in Mvita
Construction Company Versus Tanzania Harbours Authority, Civil Appeal No. 94 of 2001 on page
9 of the typed judgment was very categorical that the mere fact that an advocate has a right of audience in
84
4.5.
Commencement of Business as a Legal Practitioner
Once admitted as an Advocate of the High Court of Tanzania, a person is entitled to

practice his law in any region in Tanzania. The newly admitted advocate has several
options available to him such as setting up a solo practice, entering into a partnership
with another existing law firm in Tanzania or accepting employment in a law firm or in
public service.
It would appear from the wording of S. 35 and 36 of the Advocates Act, an advocate
cannot be allowed to practice (even if he is admitted) unless:i.
He has delivered or sent to the Registrar a written declaration in the prescribed

form in duplicate stating the name and place of business of the applicant and the
date of his admission and signed by the applicant or his partner;
ii.
He has paid to the Registrar the prescribed fee; for the practising certificate and
he has paid into the funds of the Law Society the annual subscription for the
current year prescribed under the Tanganyika Law Society Act;
iii.
He has he has paid for and holds a valid business licence; and
Zanzibar, Kenya or Uganda would not give him/her an automatic right to practice in the Court of Appeal
of Tanzania in Tanzania Mainland. For such an advocate to be allowed to practice, he/she must comply
with the conditions set in the legislations relating to practice of Advocates which for Mainland Tanzania,
is the Advocates Act. It is submitted that this reasoning of the Court of Appeal is also applicable even in
the High Court of Tanzania Mainland.
85
iv.
If he is employed or committed otherwise than as an advocate, he has obtained

approval from his employer or such other principal to practise as an advocate.
4.6.
Concluding Remarks
Having explored at length the current legal framework governing the practice of law in
Tanzania, the following will be noted as the key summaries on the chapter:
1. That the legal framework governing the admission and practice of lawyers in
Tanzania is very flexible and provides unrestricted access to qualified legal
practitioners from within and without Tanzania who want to practice law in
Tanzania.
2. That despite the fact that Tanzania currently has two parallel processes running
at the same time which are responsible for establishing the competence and
knowledge of applicants before being admitted as advocates on account of
existence of the Council for Legal Education and the Law School of Tanzania,
the two systems are non restrictive to foreign nationals who want to come and
enrol to practice in Tanzania.
3. That the Chief Justice has been conferred additional powers to admit to the Bar
other qualified legal practitioners from Commonwealth Countries including
countries from East African Community to petition and join the Bar in Tanzania.
86
4. That other institutions such as the Tanganyika Law Society and the Advocates
Committee are solely in existence with a view to ensuring that lawyers practice
their trade within the limits provided by the laws, customs and usage amongst
them.
5. That any advocate whose name is entered into the Roll of Advocates, whether he
is a foreigner or a national of Tanzania, can open up a law firm upon fulfilling
the requirements detailed in the Advocates Act and other relevant laws of the
country.
87
CHAPTER FIVE
IMPLEMENTATION OF THE EAC CROSS BORDER TRADE IN LEGAL
SERVICES UNDER THE CURRENT LEGAL FRAMEWORK IN
TANZANIA
My position is that there is need for one uniform criteria for admission and enrolment to the bar
throughout the East Africa in order to facilitate cross border practice which is now just a matter of time,
particularly with the signing of the protocol on free movement of labour within EA Region Dr. Angelo
Mapunda118
5.1. Introduction
Having explored at length the legal and regulatory framework governing the legal
services market in Tanzania, it is now an opportune time to review the applicability of
the notion of CBLP in Tanzania. To guide the presentation of this chapter, two questions
are essential at this stage; one, is the decision by the Government of the United Republic
of Tanzania not to open up its legal services market backed up by existing legal
framework governing lawyers practice and two, if not backed up by law, what other
factors could have influenced Tanzania to take the position it took?
As a prelude to the conclusion of this chapter, an argument will be made that in the
context of the current legal framework, the decision by Tanzania not to allow CBLP
under the EAC Common Market framework was a faulty one and was not supported by
existing factual legal situation on the ground but was more influenced by extraneous
factors which are not essentially legal, being mainly sparked by fears and what seemed
to be insurmountable challenges. Therefore, the conclusion of the chapter will also point
out the expected benefit for allowing CBLP in order to balance the debate.
118
Quoted in Peter, Chris Maina and Helen Kijo-Bisimba (eds.) Law and Justice in Tanzania: Quarter a
Century of the Court of Appeal, Dar es Salaam: Mkuki na Nyota Publishers, 2007, p.278
88
5.2. The Legal Framework in Tanzania and the Restriction of CBLP

While undertaking this study, the researcher was informed that that the provisions of the
two main laws governing the entry and enrolment of advocates in Tanzania; the
Advocates Act and the Law School of Tanzania Act, that, there are currently no
restrictions prescribed by laws and regulations in Tanzania to restrict practitioners from
other countries in the East African Community and other commonwealth countries119.
The only requirements imposed by Section 8 of the Advocates Act appear to be the
following:a. That the practitioners should be holders of LL.B degrees from recognised
universities in Tanzania or elsewhere;
b. That the applicants have obtained qualifications that may entitle them to qualify
as advocates in their home countries under whatever title they may have;
c. That the applicants have been advocates of Kenya, Uganda or Zanzibar for the
past five years; and
d. That they have complied with such requirements (whether relating to instruction
or examination or otherwise) as to the acquisition of professional experience as
may be specified in regulations made by the Council for Legal Education.
Therefore, it would appear that even before the signing of the Common Market Protocol,
the legal framework in Tanzania supported the CBLP concept by allowing practitioners
119
According to Acting TLS CEO, Mr. Stansalaus Nyembea, the position of the law has substantially
remained the same since Tanzania gained independence.
89
who are qualified in other jurisdictions to come and practice in Tanzania. This position
of the law has enabled several lawyers from other East African countries, especially
from Kenya and Uganda, to request for admission and are actually currently practicing
in Tanzania120 despite the fact that Tanzania has chosen the path of non-committal
towards opening up its legal services market under the EAC Common Market
Framework.
This finding leads to the conclusion that, Tanzanian negotiators, while wishing to
prohibit entry into Tanzania of foreign practitioners, were not aware of the existing laws
and may have failed to plug the existing loophole in the laws and thus rendering the
country a haven for foreign practitioners.
5.2.1. Other Non Legal Factors That May Have Influenced Tanzania to Restrict
CBLP
120
In the course of this research the researcher was provided by practising advocates a a list containing
names of about 20 lawyers who are citizens of Kenya, Uganda and several other jurisdictions who are
currently practicing as advocates in Tanzania under the existing framework without requiring additional
documentations including proof of citizenship. The list of names provided were cross checked in the roll
of Advocates and they were included therein. For purposes of anonymity, they are not indicated in this
research.
90
It is a further finding of this study that the decision by Tanzania to withhold consent to
open up the legal services market to CBLP may have been influenced by other factors
which are not entirely legal. Some of these non legal factors include the following:-
i.
Fear of Being Swallowed Up by Regional Counterparts on Account of

Having Large Number of Practitioners in their Roll of Advocates
This fear is premised on the fact that the legal profession in Tanzania is still at an infant
stage characterized by a small number of practitioners clamouring for very limited
number of clients. This notion of being small in terms of numbers makes the adoption of
cross border practice to be very difficult to grasp fearing that other neighbouring
countries especially Kenya (who have close to 8,000 lawyers) and to a lesser extent
Uganda (with over 5000 advocates) will flock into Tanzania and grab all the best
opportunities and all lucrative deals. It is apparent that this fear stems from the belief
that Kenyan and to a lesser extent Ugandan lawyers are very aggressive and more
skilled than Tanzanian lawyers121.
ii.
Fear of Being Monopolised on Account of Lack of Competitive Advantage
Another prevalent fear which came up in the discussions with key informants was the
question of quality of the legal education offered in Tanzania in the context of
competition with other East African jurisdictions. Some of the interviewed legal
practitioners expressed their dissatisfaction with the quality and standards of legal
121
It would appear that this view is not supported by a number of interviewed practitioners who hold the
belief that Tanzanian lawyers are well equipped to compete.
91
practitioners produced in Tanzania and noted that they were ill equipped to face
competition from other jurisdictions. A particular emphasis in the provision of legal
services was placed in the Law School of Tanzania and some particular universities for
producing lawyers who are half baked and not competitive enough for the rigors of legal
provision in Tanzania and therefore not also competitive for the East African Region.
iii.
Fear of Foreigners Providing Substandard Services to Tanzanians
Another fear that was raised was on the question of maintaining quality of service
provision in Tanzania especially in terms of lawyers from other jurisdiction coming to
Tanzania. Many of the key informants were of the view that foreign lawyers are not well
equipped to deal with local circumstances in Tanzania and were not acclimatized with
the cultures, traditions and friendship characteristics of Tanzania and will thus impact
the provision of services to Tanzanians.
iv.
Fear of an Adequate Judiciary
Another fear that was raised was the quality of our judicial system in Tanzania and its
capacity to render effective justice in Tanzania. A number of judicial impediments were
mentioned including frequent and unnecessary adjournments, delays in getting
judgments, problems of execution of decrees and rampant corruption.
v.
Lack of Harmonization of Legal Education in East Africa
92
During the discussion it became apparent that before cross border practice is undertaken,
a number of steps must be taken to ensure educational and judicial systems across East
Africa are harmonized. This harmonization was being stressed to ensure that there is a
uniform curriculum for law students across the region. Such harmonization will seek to
provide some core subjects which every East African lawyers will be equipped with.
With no such harmonization, attaining acceptable qualifications within East Africa will
become problematic which may translate into issues of competence if cross border
practice is allowed.
The fact that East Africa has two judicial traditions which are at odds with each other
was also cited as a challenge for Tanzanian lawyers and acts as an impediment for their
lack of support to the idea of cross border practice. The fact that Rwanda and Burundi
follow a Civil law tradition and the rest of East Africa, i.e. Kenya, Uganda, Tanzania
mainland and Zanzibar follow a common law tradition, poses a challenge that needs
addressing before we allow cross border practice.
vi.
Lack of Information
Another challenge that was also raised was lack of information and forum to debate and
interrogate the issue of cross border legal practice amongst legal practitioners. It was
argued by some and noticed by the researchers that many advocates were not well
acquainted with sufficient information in relation to cross border practice. They also
93
appeared to possess very limited information on the role and progress of the East
African Community towards East African integration.
It was apparent during the discussions that the Tanganyika Law Society was not actively
involved at the national level and even EAC Level in the discussions leading towards
the adoption of cross border practice. It was also apparent that the Ministry of East
African Cooperation which has the mandate to coordinate the process of EAC
integration in Tanzania has not consulted the Tanganyika Law Society nor key
stakeholders for consultations prior to the signing of the EAC Common Market
Protocol. Indeed, even the TLS is not aware as to why the Government of Tanzania
opted not to indicate its commitment although it whole heartedly supported the move by
Tanzania to restrict its legal services market to CBLP.
Closely related with the above is the fact that the TLS as a statutory association for legal
practitioners in Tanzania has not lived up to its role to protect and guide the lawyers and
prepare them for the eventually possibility of crossing borders to provide services. The
TLS, it appears, despite the ensuing debates and discussions, has not formulated and
came up with a position on cross border practice and relies mainly on the position taken
by the Governing Council way back in 2003. This position which was taken even before
94
the signing of the Common Market Protocol has not been revised nor revisited to ensure
that it goes in tandem with the current discussion.122
5.2.2. Can CBLP be beneficial to Tanzania?

Having found as a fact that Tanzania opted out of CBLP implementation on account of
expected fear and challenges, one is left with the question of whether there are any
opportunities to be derived from adopting CBLP. This part, albeit briefly, will attempt to
shown some potential benefits which render support for the arguments that Tanzania
will be better off if it implements CBLP and negotiates any other arrangement within the
Common Market Protocol. Some of the expected benefits include, acquisition of new
skills and competencies from partner state counterparts; the potential of sharing a rich
but common jurisprudence. Herein below is the discussion of the opportunities.
i.
Acquisition of new skills and competencies from partner state counterparts
The first benefit cited was the benefit of acquiring new skills and competencies from our
regional counterparts. Many of the key interviewed informants who were pro-cross
border cited the benefit of acquiring new skills and competencies as one of the reasons
for supporting cross border legal practice in Tanzania. In supporting this line of
122
During the conducting of this research, it was brought to the attention of the research that despite the
fact that TLS was holding to its position on cross border practice taken by the Governing Council in 2003,
it has commissioned a study to evaluate the current status and position on cross border practice with a
view to revisiting its earlier position. The study which was being undertaken by renowned academics from
the School of Law of the University of Dar es Salaam and the Law School of Tanzania was still at the
nascent stages at the time of preparing this study.
95
thinking, progress made by Kenyan lawyers in drafting and litigations was often cited as
a skill that can easily be acquired and integrated into Tanzania 123.
ii.
The potential of sharing a rich but common jurisprudence
The second major benefit of embracing cross border practice stems from the fact that
EAC states share a common legal history and therefore can benefit from a common
jurisprudence. The fact that three of the five East African countries trace the
development of their law from a common source, namely the English Common Law,
was also cited by at least 3 respondents as a convincing reason to support cross border
legal practice124. Those who support this argument point out that such a common history
provides a rich source of jurisprudence to rely upon in making arguments in courts of
law since most statutes are in pari-materia, making the decisions highly persuasive.
It was pointed out to the researcher that in the absence of comprehensive law reporting
in Tanzania, many lawyers are now resorting to decisions from Kenya and Uganda who
123
This point was emphasised again by Mr. Apolo Mboya, the CEO of Kenya Law Society while
discussing the issue of CBLP with the researcher at the sidelines of the EALS AGM and Conference
held at Ngurdoto Hotel in Arusha from 25 27th November, 2011
124
It is interesting to note that from 2009 following recommendations from the EAC, Rwanda which
follows civil law has begun a process of transforming its legal system towards the common law system in
order to move in consonance with other Partner States who use the common law as the basis of judicial
administration. At the expense of being isolated and to move in parlance with others, it is submitted that it
will only be a matter of time before Burundi follows suit and embraces common law legal tradition. For
additional details and further background information on the issue, read the online version of Rwandas
New
Times
Newspaper
of
2nd
June
2009
(accessed
on
28th
July,
2012
http://www.newtimes.co.rw/news/views/article_print.php?i=13914&a=16230&icon=Print
through)
96
apparently have better law reporting for decisions that strengthen and support their
cases125.
5.3. Concluding Remarks

This chapter interrogated at length the position reached by the Government of the United
Republic of Tanzania to withhold its endorsement on CBLP under the EAC Common
Market Framework. It has been submitted that this decision was not influenced nor was
it informed by the existing law on account of the fact that the applicable law actually
does not prohibit the functioning and operationalisation of CBLP. Therefore, in view of
this fact, the discussion proceeded to locate other non legal reasons for Tanzanias
adoption of a hard stance on CBLP and enumerated these factors as well as anticipated
benefits that can accrue if CBLP would be allowed.
Therefore, by way of summary, it can be noted that given time, CBLP in Tanzania will
become a reality, if it has not been one already, on account of its flexible and
accommodating regulatory framework despite the fact that it has not committed to (or
pretend not to) open up its legal services market. Perhaps, the safest way for Tanzania
125
It was pointed out to the researcher by Godfrey Wasonga, an advocate based in Dodoma, Jonathan
Mbuga, an advocate in Dar es Salaam and Albert Msando who is based in Arusha that it was quick for a
Tanzanian lawyer to go to www.kenyalaw.org and www.ulii.org and search for a reasoned recent
decision on a matter they have at hand rather than to rely on a decision in the Tanzania Law Reports
which were last updated in 1987, and suffer the consequences of having to rely on a decision that has
since been overruled or overturned and the lawyer is not aware of it as a result of being unreported.
97
should be to allow some form of CBLP to the extent provided by the law and negotiate
within the framework of the EAC for a better deal for its legal practitioners.
98
CHAPTER SIX
CONCLUSION AND RECOMENDATIONS
My position is that there is need for one uniform criteria for admission and enrolment to the bar
throughout the East Africa in order to facilitate cross border practice which is now just a matter of time,
particularly with the signing of the protocol on free movement of labour within EA Region Dr. Angelo
Mapunda126
6.1. Introduction
This study attempted to position the provision of legal services in Tanzania in the wake
of a wider transformation of the society towards a borderless East African Community
through CBLP by analysing the implications of ongoing CBLP discussion on Tanzania
Mainland under the auspices of the East African Community Treaty Framework. Central
to the study was the decision taken by the Government of Tanzania while launching the
Common Market Protocol to withhold its consent to open up its legal services market to
practitioners from EAC Partner States. The study interrogated this decision by Tanzania
in relation to its current legal framework and establish there from whether the decision
gets support from the current law.
The study found as a fact that the decision not to commit is not supported by the reality
on the ground on account of the fact that the current legal framework supports some
form of CBLP. As a concluding chapter of this study, it will be guided by the words of
Oliver,
One of the basic functions of the conclusion is to summarise the progress which
has been made in achieving the aims of the research. A thesis is a very long
126
Quoted in Peter, Chris Maina and Helen Kijo-Bisimba (eds.) Law and Justice in Tanzania: Quarter a
Century of the Court of Appeal, Dar es Salaam: Mkuki na Nyota Publishers, 2007, p.278
99
document and by the time the reader reaches the conclusion, a good deal of the
material may have slipped from immediate memory. It is important then to
remind the reader of the key points made so far.127
6.2. Conclusion
This study was conducted under the general hypothesis that despite the commonly held
belief from within and without the country that Tanzania restricts foreign legal
practitioners to practice in the country, the legal framework governing provision of legal
services in Tanzania is and has always been liberal in allowing foreign legal
practitioners to register and practice in Tanzania and any decision to restrict foreigners
to practice law under the EAC Framework or otherwise is contrary to the existing law
and practice and is informed by some other factors not entirely legal.
This general hypothesis was further subdivided into two specific hypotheses which are
listed hereunder:i.
That despite the clear provisions of the laws, many Tanzanian practitioners and
the Tanganyika Law Society are opposed to CBLP on account of other factors,
issues and challenges which ought to be addressed before doors are opened to
CBLP.
ii.
That the best approach to negotiate a better deal that will foster Tanzanian
practitioners acceptance of CBLP is a participatory involvement of them in
current negotiations within the framework of the Common Market Protocol.
During the presentation in this study, the following appears with clarity:
127
Oliver. P., (2004), Writing Your Thesis, Sage Publications, London, p. 150.
100
i.
That the prevailing laws and regulations governing the practice of laws in
Tanzania are flexible, accommodating and contemplate the possibility of foreign
lawyers to practice in Tanzania and therefore, in their natural sense, tend to
encourage and foster CBLP despite grave sentiments and opposition to CBLP
expressed by practitioners in Tanzania.
ii.
That a vast majority of Tanzanian legal practitioners are fearful of cross border
practice and their fears appears genuine in the light of the fact that they need to
protect their infant legal services market and there appears no other alternative
being floated on how to protect the legal services market from foreign
encroachment and domination hence effectively supporting hypothesis one.
iii.
That in the light of the expected opposition from legal practitioners, cross border
legal practice cannot be implemented and will need to overcome a lot of
challenges which undoubtedly can be overcome by informing legal practitioners
not only of the envisioned benefits of cross border practice but also that it is in
their best interest. This finding effectively supports the specific hypothesis two.
iv.
That the best way to overcome the challenges anticipated and enable Tanzanians
to reap the benefits of integration, stakeholders in the legal services market must
be actively involved in the whole process to ensure their buy-in and support of
the cross border practice after having been satisfied that a well managed cross
101
border practice framework addresses and caters for their interests. This assertion
essentially and effectively supports the hypothesis three.
v.
That the best mode for negotiating a better deal for Tanzania is to negotiate
within the framework of the EAC Common Market rather than outside it on
account of the fact that during negotiations there are many concessions made. In
the current setup, Tanzania will be on the losing side on account of the fact that
countries may even wish to move ahead under the principle of Variable
Geometry and yet expose the country to indirect CBLP on account of flexible
legal regime.
Therefore, one can conclusively say, in support of the general hypothesis that Tanzania
ought to retract its position of withholding its consent to allow CBLP and return to the
negotiation table and seek a better deal in a give and take situation on account of the fact
that insistence on non commitment will not work in practice due to its flexible legal and
regulatory regime.
6.3. Recommendations
Having discussed and analysed the framework under which CBLP will be undertaken in
the EAC and how its implementation will be hampered or enhanced by the existing legal
and regulatory regime in Tanzania, it is an opportune time to give recommendations.
102
Having adopted a position that Tanzanias legal and regulatory framework presently
recognises and supports some form of CBLP and it is futile to resist the fact that East
Africa is gradually being integrated and this decision appears irreversible, the following
general and specific recommendations are presented to different stakeholders if
Tanzania were to harmoniously and advantageously adopt CBLP.
6.3.1. General Recommendations

The following are general recommendations being made:
i.
That the Government of the United Republic of Tanzania should rethink its
decision to withhold consent to CBLP as envisioned in the EAC Common
Market Protocol on account of the fact that the current law is in fact recognising
it.
ii.
That an opportunity to negotiate a better deal for Tanzanians on CBLP will be

lost if the EAC Partner States decide to move on with the approximations of
their laws under the concept of Variable Geometry and it may be too late to join
and still negotiate as an equal partner.
6.3.2. Specific Recommendations to the Ministry of East African Community

The following are specific recommendations to the Ministry of East African
Community:i.
Organising a stakeholders conference chaired and coordinated by the Ministry

of East African Community that will pull together advocates, law firms,
academic institutions offering law and judicial administrators to discuss various
103
issues relating to cross border legal practice in East Africa with a view to
coming up with a common position on how the envisaged cross border legal
practice will be adopted in Tanzania.
ii.
Review the present position in relation to cross border practice and assess its
viability in the light of contributions and informed opinion gathered from the
multilateral judicial stakeholders.
iii.
Formulate a strong negotiating team composed of eminent lawyers and jurists

that will negotiate the entry of Tanzania into the Cross Border Legal Practice in
East African Common Market while protecting the interests and identity of
Tanzania Legal practitioners.
iv.
Monitor closely and update stakeholders on negotiations and debates touching

on cross border legal practice at the level of East African Community such as
those done at the level of sectoral committees and at the Legislative Assembly
and paying particular attention to the East African Advocates Bill.
v.
Formulate and put in place acceptable, legitimate and reasonable limitations to

cross border legal practice in order to protect and shield from competition
Tanzanian Legal Professionals industry until such time when the industry will be
able to compete effectively.
104
6.3.3. Specific Recommendations to the Law School of Tanzania and other Higher
Learning Institutions offering Law Courses
The following are specific recommendations to the Law School of Tanzania and other
Higher Learning Institutions offering law courses:i.
Preparing law students and upgrading skills of existing legal practitioners on

issues relating to East African Community with a view to creating awareness of
the opportunities presented by the EAC and empowering them to pursue the
opportunities that may suit them under the common market.
ii.
Negotiating with counterparts in other East African countries at an appropriate

forum or arrangement mechanisms that will allow for a common syllabus and
curriculum on law with a view to having common qualifications and
competencies amongst all lawyers in East Africa.
iii.
Introduce into the legal studies curriculum courses that will broaden the skills of
lawyers in subjects that attract cross border business with a view to equipping
upcoming lawyers with the necessary skills for effective competition with
regional counterparts.
6.3.4. Specific Recommendations to the Tanganyika Law Society

The following are the recommendations to the Tanganyika Law Society in relation to the
efficient adoption of the cross border practice in Tanzania:-
105
i.
Expedite the ongoing study on cross border legal practice with a view to coming
up with a comprehensive position on the issue as an improvement or reversal of
the position taken by the Governing Council in 2003.
ii.
Organise a special meeting of all members of the Law Society to

comprehensively discuss cross border legal practice with a view to updating
members on the current developments on the issue and preparing them to exploit
the opportunities presented should cross border practice be adopted.
iii.
Continuously liaise with the East African Law Society which plays a central role
at the East African Community with a view to obtaining key updates on the
discussions on cross border practice.
iv.
Liaise with other sister bar associations across East Africa with a view to
forming a common understanding and mutual recognition of each others
qualifications.
v.
Enact and operationalise into place a code of conduct and ethics of lawyers that
will stand the test of time and which shall comprise of the best practices that
address issues relating to trade in legal services across borders.
6.3.5. The Council for Legal Education

The following are the specific recommendations to the Council for Legal Education in
relation to the efficient adoption of the cross border practice in Tanzania:i.
Debate and prescribe specific rules for recognition and admission to practice
applicable to foreign legal practitioners who want to practice in Tanzania with a
106
view to amplifying the existing rules for admission to practice that are provided
for under the Advocates Acts and practicing rules.
6.3.6. Specific Recommendations to the Tanzania Legal Professionals

The following are the specific recommendations to Tanzania Legal Professionals in
relation to the efficient adoption of the cross border practice in Tanzania:i.
Prepare mentally, psychologically and in their practice to welcome cross border

legal practice as it is only a matter of time before cross border legal practice will
become a reality in Tanzania following the government of the United Republic
of Tanzanias decision to ratify the EAC Common Market Protocol.
ii.
Enhance their skills in international trade, investments and other commercial

practices that have been recognised not only in East Africa but also in the world,
to attract more cross border business involving legal services.
iii.
Exploit business opportunities, networks and linkages with counterparts in other

East African countries with a view to reaping the benefits that may accrue as a
result of increased trade relationships between EAC member states and in the
process gain more competence and overcome the fears of domination by
counterpart legal professionals who have the advantage in terms of numbers.
6.4. Concluding Remarks on the Study

This study interrogated the existing legal framework for provision of legal services in
Tanzania against the background of the EAC Treaty Framework. It looked at the
possibility of implementing CBLP through the EAC Common Market framework. The
107
study was prompted by the apparent lack of clear information on why Tanzania opted
out of indicating commitment to allow CBLP under the EAC Common Market
framework. The commonly held belief for the decision was that it was done with the
good intention of shielding its young legal services market from stiff competition from
other Partner States practitioners.
The study in positive affirmation of the formulated hypothesis found that the current
legal framework in Tanzania renders support and facilitates CBLP despite the decision
taken by Tanzania in restricting CBLP under the EAC framework. As a direct result of
this finding, the study concluded that the decision to restrict CBLP was largely
influenced by other factors and not by the existing legal framework. The study went
further and addressed these factors which were mainly found to be protectionist in
character and would classically be frowned upon for being in the form of Non Tariff
Barriers.
In sum total, the study recommends for rethinking of this decision and urges the
Government of Tanzania to return to the negotiation table and negotiate for a better deal
for its lawyers within the EAC Framework. The study further urges the stakeholders in
Tanzania to come together and discuss the issue at length since it appears that there is a
clear lack of coordination between the parent ministry, Ministry of East African
Community and other legal stakeholders.
108
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IMPLEMENTING CROSS BORDER LEGAL PRACTICE

WITHIN THE EAC STATES

Master of Laws (LL.M) Dissertation

IMPLEMENTING CROSS BORDER LEGAL PRACTICE

Dissertation Submitted in (Partial) Fulfillment of the Requirements for

University of Dar es Salaam

LIST OF ACCRONYMS AND ABREVIATIONS

Annual General Meeting

Cross Border Legal Practice

East African Community

East Africa Law Society

Economic Community of West African States

General Agreements on Trade in Services

The North American Free Trade Agreement

Tanzania Commission for Universities

Tanzania Germany Centre for Postgraduate Studies in Law

Tanganyika Law Society

World Trade Organisation

LIST OF STATUTES AND CASELAW

Subsidiary Legislations (Tanzania)

Chapter Two: Legal Services as Commodity in International Trade ................ 29

The Legal Framework in Tanzania and the Restriction of CBLP ............................ 84

1.1. Background to the Problem

1.2. Context of the Research Problem

1.3. Statement of the Problem

Following the ratification and commencement of implementation of the East African

1.4. Objective of the Study

Whether it is the existing legal framework for lawyers practice informed

Whether the existing legal framework for legal practitioners in Tanzania

1.5. Literature Review

International Trade Department, p.2

2012 through http://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm6_e.htm

Services Trade for Development: A Background and Guide on Service Coalitions in

As highlighted by the World Bank9, negotiations on service agreements increasingly

http://lawdigitalcommons.bc.edu/iclr/vol20/iss2/7 on 26th April, 2012

Establishment includes the "right to take up and pursue activities as self-employed

Available at SSRN: http://ssrn.com/abstract=1262054 or http://dx.doi.org/10.2139/ssrn.1262054

progressively open up its legal services market.

Harmonise their statutory requirements on legal training at undergraduate and

Establish mechanisms for reciprocal recognition of qualifications from each

(accessed on 14 June, 2012)

Echoing the challenges of cross border practices identified by Kapinga, representative

Ibid. EALS p.15 17

Highlighting the measures to overcome the identified challenges, Prof. Twinomugisha

1.6. The Research Hypothesis

Twinomugisha, supra pg.7

1.7. Significance of the Study

1.8. Scope and Limitation of the Study

1.9. Research Methodology

1.9.1. Choice of Case Study

To acquire a richer and more in-depth understanding of the concept of cross

1.9.2. Choice of Data Sources for the Research

Leedy, 1993 p.119

Creswell, 1994 p. 144).

This approach helped a lot in obtaining reliable sources of information. It contributed to

1.9.4. Documentary Sources

1.9.5. Ethical Rights of the Participants

1.9.6. Data Analysis

1.10. Outline of the Chapters

hypothesis employed, methodological approach used to arrive at findings and the

Chapter Two is devoted to a consideration of discourse surrounding provision of

1.11. Concluding Remarks on Chapter One

Cross Border Trade in Legal Services

In practice however, this mobility is difficult to achieve because it requires a