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LECTURE 6
Lecture delivered on 16th April, 2015 in the Multi-Purpose Hall, the Law School
of Tanzania, 0900-1100hrs
Introduction:
Any professional fraternity, and in this specific case, law, has limited freedoms when
it comes to professional practice of that vocation. Take notice and put in your
footnote that this is an uncompromising rule. There is no such thing as absolute
freedom to practice law. The freedom is curtailed by a host of rules of values and
etiquette formulated through a framework of self-regulation invented by the fraternity
or may be through external regulation such as by the Government through legislative
process.
It is the theme of this paper that although the author prefers self- regulation mode by
the fraternity, state regulation is not objectionable or apprehensive and both systems
of regulation may co-exist. However, the vitality of independent legal profession is
better maintained and cherished without unruly government interference through
regulation. Where the latter is about to take place I recommend that the Office of the
Attorney General undertake wider, sufficient and effective consultations with the Bar
and the Bench.
The purpose of regulation of ethics and conduct of legal practitioners is to ensure the
following salient objects2:
LL.B (Hons) UDSM, LL.M (American University, Washington, District of Columbia); former Alternate Judge to the SADC
Tribunal; Former Judge of the High Court of Tanzania; and immediate past Attorney General of United Republic of
Tanzania and Ex officio Member of Parliament of Tanzania. The author started his professional carrier as a State
Attorney, rose through all ranks to become a Director of Constitutional Affairs and Human Rights in the Ministry of
Constitutional and Legal Affairs before his appointment to the Bench.
1
2 Each Country has the norms and standards that are at the core of regulation. For purposes of this lecture, I have taken
some principles expounded by the Bar of England and Wales in response to U.K Governments three Green Papers of
January 1989 on some aspects of the System of justice in England and Wales in a book entitled Quality of Justice: The
Bars Response (1989). It must be noted that in UK the Legal profession practice is twofold. There are Barristers who
represent clients in the Courts and Solicitors who prepare briefs and draw instruments for the Barristers but do not
represent clients in Courts. In the system there is therefore cross monitoring. Solicitors monitor Barristers for efficiency
as Advocates and, on the other hand, Barristers do the same to check solicitors for thoroughness and integrity towards
the Courts in the preparation of cases. That is essentially self-regulation of the profession. A solicitor is responsible in
obtaining business orders and is allowed to canvass for business. He can draw up instruments such as wills, conveyance,
plaint or such other legal instruments requiring his preparation. Solicitors cannot make representation in Courts. A
Barrister is a lawyer entitled to practice in Higher Courts. The separation is not based on academic qualification or legal
training. In Tanzania, on both sides of the Union, legal practice is fused together without such a distinction. However, for
the time being Advocates are allowed to practice in the High Court, Courts of Resident Magistrates and District Courts but
not in the Primary Courts. That position is likely to change when Primary Courts are manned by qualified lawyers, i.e.
holders of the first degree in Law and qualified from this Law School. Amendment of the contemporary Law will be
(a) That justice is done to everyone seeking justice in the courts within a
reasonable time and at reasonable expense;
(b) That every person has the best possible access to the services of
qualified and competent Advocates or Attorneys licensed to practice
law;
(c) That in regard to quality and standards, at all times the services
provided by Advocates are of high quality and appropriate to each
client without discrimination based on status of a person, and that
quality and standards are sustained through continuous legal
training, ethos and disciplines of the profession exercised both
formally and informally;
(d) That Attorneys practicing law for gain are remunerated fairly and
reasonably for their services;
(e) That legal practitioners represent their clients fearlessly, independent
of all pressures and conflicting interests whether of Government or
otherwise, irrespective of the popularity or unpopularity of the client
or clients cause, and with proper adherence to the requirements of
the administration of justice [Cab-rank Rule]
(f) That objective advice of high quality is available from Attorneys of all
categories
The grounds and objects are not exhaustive but show a general framework on the
extent of regulation. Here the Government has Constitutional obligations including
adherence to the principles of social justice, welfare of her people and equality before
the law3. It has an inviolable right to ensure that where self-regulation is inadequate it
can supplement any rules of ethics in order to safeguard its policy and constitutional
requirements. The unregulated or inadequate regulation of a profession creates crisis
of confidence by the public towards the profession or the state. A crisis of the kind
has a negative effect on the rule of law and institutions of governance.
necessary. An attempt to do so through a Miscellaneous Amendment Bill did not succeed on the pretext that advocates
should not be allowed to practice in the primary courts. It seems to me this was not based on any parliamentary wisdom
but on partisan mentality and lack of understanding of judicial system or lack of appreciation on the right to legal
representation at all levels.
3 This general policy is stated in Part II of Chapter 1 of the Constitution of the United Republic of Tanzania that has
enshrined the Fundamental Objectives and Directive Principles of State Policy. The Right to equality is a basic right which
is justiciable in court.
A glance at preceding topics gives me comfort that I am not in a new area of study
and, to that extent, I do not intend to dwell on the history of study of ethics or indulge
in investigation of matters of morality and effect of pain and pleasure in utility. 4
Neither do I need to participate here in the academic journey of this history. I
presume this was covered at Universities or colleges of law from where you
graduated, with or without flying colours. That knowledge is no doubt critical here
and you will appreciate this statement in the group discussions during the seminars.
At this stage and for this presentation, our interest lies in the application or utility of
theoretical education.
Professional Ethics; Ethics; Logic; and Philosophy are topics that make law
interesting and through the knowledge acquired in this process, legal practice will also
be interesting vocation. It is easy to appreciate the relevance and need to regulate
Legal Practice as is necessary to regulate other professions in equal measure. The idea
and active process of regulating a legal profession, and any other profession, limits
the paradigm within which a person professing a legal profession or any other
particular profession must peg her conduct and behavior.
So, what is regulated? It is Conduct, behavior and etiquette. These include very
elementary values that are taken for granted in everyday life.
The fraternity
Members themselves who should believe in them and comply to the spirit and letter
of the Code. The basic element is about what you value as basic to your morals and
your resistance to temptations. It is about your inner emotional intelligence, which
will always affect your leadership skills and decision-making.5
With these introductory remarks, let me take you to the specifics relating to
professional ethics for State Attorneys and Lawyers in Public Service, that is Lecture
6.
State Attorneys and Lawyers in Public Service are public officers and, as such,
regulated by statutory law6. Firstly, these Attorneys are officers in the Office of the
Attorney General who, according to Article 59 (2), is appointed from amongst public
officers qualified to perform functions of advocate or persons who are qualified to be
registered as advocates 7 . Secondly, Attorneys undertake through delegation the
functions of the Attorney General under the constitution, including issuance of legal
opinion to the Government; court appearance in civil litigation for or against the
Government or prosecution of criminal matters; legislative drafting; negotiation of
commercial or trade agreements where legal inputs are required, International Treaties
including trade, regional integration, co-operation or any other legal or quasi-legal
matter referred to the Attorney General under the Constitution or any other law. All
of the officers falling under this paradigm are qualified lawyers. They are therefore
5 See Fauz Twaib: The Legal Profession in Tanzania; The Law and Practice, Law Africa 2007. This should be a must
reading work for this subject. See also Paul Faustin Kihwelo: Quality Assurance and the Teaching of law in East
Africa: Challenges and Future Prospects in The Open University Law Journal, Vol.2, No.1, July 2008. From the
moralist point of view, read Brian Cronin; Values Ethics: A Lonergan Perspective (Guide to Philosophy Series, No.
13, Consolata Institute of Philosophy. The work introduces the subject of Cognitional theory and epistemology in
terms of values, evaluations and value judgments on what is ethical or unethical. It is recommended for reading. The
relevant question is how and what guidance is available to identify the activities and NORMS that allow the making of a
value judgment.
6 The term State Attorney is defined by the Office of Attorney General (Discharge of Duties) Act as a person appointed
under Section 24 or 25 of the Act and includes a Parliamentary Draftsman. As public officers they are regulated by the
Public Service Act, [Chapter 298, R.E 2002] and Subsidiary Legislation thereon. The relevant subsidiary Legislation are the
Public Service Regulations 2003, Public Service Disciplinary Code of Good Practice (G.N 53/2007 and the Standing Orders
for the Public Service, 2009 (G.N 493/2009). The three are made basically under Section 35(5) as amended though
Sections 7, 34(3)(g) and 30 are also relevant. There is also a Code of Ethics and Conduct for the Public Service made
under Regulation 65(1) of the 2003 Regulations.
7 The term Law Officer is defined in the Interpretation of Laws Act, (Chapter 1 of our Laws) to mean the Attorney General
and every legally qualified member of the Attorney Generals Chambers of the rank of or above Senior State Attorney or
Senior Parliamentary Draftsman. It follows therefore that the Code of Ethics is applicable to govern the Attorney
General. Law Officers are regulated also by the Public Leadership Code of Ethics [CAP 398 R.E 2002].
legal professionals and their regulation is important. Their conduct, behavior and
etiquette must not put both public and private legal practice at disrepute or ridicule.
Recruitment qualifications for State Attorneys are also regulated. Section 24 (2)
provides for the minimum qualifications which cuts across the board as follows:
A person shall be qualified for appointment as a Law Officer or a State
Attorney who possesses a minimum of a first degree in law or the equivalent
qualification from an institution of higher learning accredited or recognized as
such by the competent authority
What this means for the purpose of this lecture is that the persons that are regulated
by the Act are legal professionals and are presumed to be professionally competent
and that this presumed competency is vested in matters of the law. I put it to you that
competence is wider that knowledge in, or skills of, law. My thesis is that in practical
sense, competence should encompass behaviour and attitude. How you relate to
others, empathy, self-awareness or what is referred to as meta-abilities. Given the
constraint of time, I leave that subject for another occasion.
Section 27 (1) of the Act provides for existence of A Code of Ethics for Law Officers,
State Attorneys and other Legal Officers in the Ministry, Government Departments
and Agencies8. The Code is applicable to lawyers who are qualified for employment
under Section 24(2) of the Act. It does not apply to lawyers who are not qualified
under section 24(2).
The Public Service Regulations and Rules of Professional Conduct and Etiquette of
the Tanganyika Law Society also bind the Law officers, State Attorneys and Legal
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officers. The former are made under the Public Service Act [CAP 298 R.E 2002].
Section 34 directs the Minister responsible for Public Service to make regulations
providing for the regulation of ethics and Code of Ethics of Public Servants. Using
that mandate the Public Service Disciplinary Code of Good Practice (G.N 53/2007)
was propounded as a subsidiary legislation to the Act. It governs the Public Service
in general. The Law officers, State Attorneys and Legal Officers are public officers
and are bound by the Act. The Public Service Regulations has two fundamental
issues on ethics, which should draw your attention and be a subject of further
reflection for those who want to pursue a career at the Office of the Attorney General
or in public service. Does it real enact a Code of Ethics? Is it sufficient or effective?
In paragraph 2.1 it states:
A Code of Good Practice is what is called soft law meaning that the
provisions of the code do not impose any hard and fast obligations on any
person. The only legal obligation may be to justify a departure from the
provisions of the Code.
In paragraph 3.2 it further provides:
The Code is therefore intended to help and encourage the employees to
achieve and maintain acceptable standards of conduct, and performance in
order to reach the required blend of flexibility and consistency and to ensure
that there is fairness, systematic and consistent approach to the enforcement
and application of the Code irrespective of grade and status of employers or
employees.
In essence the Code of Good Practice is descriptive of the procedure to be followed in
enforcement of disciplinary measures in the public service rather than a formulation
of code of ethics for the service. It does not actually prescribe or describe what
conduct is unethical or set standards of conduct.
together with the Standing Orders for the Public Service and the Office of Attorney
General Act. Section F of the Orders is on Rules of Conduct and Paragraph 12
prescribes serious pecuniary embarrassment of a public servant or officer as a
misconduct impacting on the image of public service. It may attract disciplinary
proceedings. Other misconduct behaviors are stated to be seeking political influence
to advance ones cause and refusal by an officer to take a post to a station allocated to
him. But what behavior is misconduct? This is a grey area in statutory law. Clarity
is needed. Paragraph F. 26 provides a general definition of this term as:
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Any act done without reasonable excuse by a public servant which amounts
to a failure to perform in a proper manner any duty imposed upon him as
such, or which contravenes any enactment relating to the public service, or
which is otherwise prejudicial to the efficient conduct of the public service or
tends to bring the public service into disrepute, shall constitute misconduct.
types of misconduct. The same binds Law Officers, State Attorneys and legal officers
in public service. Some of these are:
a) Act or omission involving moral turpitude. Theft and corrupt practices
are mentioned, but could also involve acts relating to sexual
harassment;
b) Act or omission which tend to bring the Public Service into disrepute;
c) Insubordination;
d) Absence from duty for more than five days without leave or reasonable
cause;
e) Using without consent of the prescribed authority, any property or
facilities provided for the purpose of the Public Service, or for some
purposes not connected with official duties;
f) Engaging in any activity outside official duties, which is likely to lead
to taking improper advantage of ones position in the Public Service;
g) Refusal to comply with an order regarding a position to a station;
h) Failure to perform satisfactorily duties assigned to the public servant;
i) Disclosure of information in contravention of the National Security
Act;
j) Act or omission which is against public interest;
k) Inability to perform duties efficiently by reason of the use of alcohol or
drug abuse;
l) Negligence occasioning loss to the employer;
m) Gross negligence in the performance of duty; and
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Professional misconduct for Law officers, State Attorneys and Legal Officers are
therefore all those acts or omissions referred to in the Office of the Attorney General
(Discharge of Duties) Act; the Public Service Act and subsidiary legislation made
thereunder, including a Code of Ethics and Conduct for the Public Service; The
Public Leadership Code of Ethics [Chapter 398 R.E 2002]; Public Leadership Code
of Ethics [Declaration of Interests, Assets and Liabilities) Regulations (G.N
108/1996)] and the Rules of Professional Conduct and Etiquette of the Tanganyika
Law Society. It is perhaps over regulation.
except for isolated cases. Few are known and generally Enforcement of the Code of
Ethics is not so much pronounced. However, Section 27(3) of the Office of Attorney
General (Discharge of Duties) Act gives the Deputy Attorney General, under the
superintendence of Attorney General, a duty to enforce the Code of Ethics. In doing
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so, it is presumed that the Rules of Professional Conduct and Etiquette of the
Tanganyika Law Society and codes of ethics governing public service shall be called
for help in matters not covered by the Code. This study shows that the Public
Framework of Regulation is adequate.
Procedures for enforcement of the Act are those provided for in the Public Service
Act and the Public Service Regulations, (G.N 53/2007).There is no need for the
procedural duplication but it is neater if the procedure for enforcement of ethics for
Law Officers, State Attorneys and Legal Officers is immediately appended to the
Code of Ethics.
Ethical Challenges:
There are ethical challenges in the adherence to the Code of Conduct just as there are
challenges to the Advocates in private practice. The way people act is a result of a
complex weave of situational factors, history and personality. Even if we have good
ethical or moral values to begin with, given certain situational pressures, every one of
us can become unethical. The biggest challenge is to identify danger and prepare for it
and avoid it. The saying goes that Voyagers who know the location of quick sand
navigate around it. There are traps which may affect the independence of a law
officer, State Attorney or legal officer in public service. The following is an attempt
to identify them:
(a) As part of value for integrity, attorneys are prohibited to allow outside
interest to compromise or in any other way jeopardize the integrity of the
legal profession and the public service and administration of justice
generally.
Imagine the
timelines fixed by the Court for the defendant to file a Written Statement
of Defence (WSD) to a Plaint filed against the Government. Is the filing
of a Written Statement of Defence without details of facts from the
10 See Stanley Milgram, Behavioral Study of Obedience The Journal of Abnormal and Social Psychology, 67, no.4 (1963):
371-378, American Psychological Association renewed copyright 1991 by Alexander Milgram; Social Psychology, 2nd
edn, (York: Harcourt Brace Jovanovich, 1990, 389-391. See also Robert Hoyk & Paul Hersey, The Ethical Executive,
Avoiding the traps of the unethical workplace, Stanford Business Books, (South Asian edition, 2009)
14
Ministry a breach of the Code of Ethics? So, what attorneys do to save the
government is to file temporary or holding WSD with a view to amend the
same should they receive full facts from the relevant institutions because a
general denial in a Statement of Defence is no defence and may be struck
out by the court leading to financial loss to the government. On the other
hand, it is the Attorney who receives the wreath of the Court and from the
bar. It reflects on the competence, honesty and integrity of the attorney.
Is this a breach of the Code of Ethics? There are complications when in
such cases the attorney files an affidavit alleging facts that one cannot
verify as correct or true. This is done in good faith, but is it a breach of
the Code if those facts turn out to be false? Can one amend an affidavit
that has been filed in court? Is that not a breach of responsibility?
(d) The work of attorneys is not exclusive.
companions. These too can cause problems to the Attorneys. The files are
kept in legal registries. If court case files are not brought to the attorney,
preparation for court appearance is poor. In a situation such as that an
attorney cannot research for the case.
arguments will affect his or her competence as the case may be.
(e) The office of the Attorney General and Ministries are ill funded. That has
implications. Short term or vocational training for lawyers is lacking.
Training and allowing attorneys to travel overseas for seminars is
important in building confidence of an attorney.
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Conclusion:
This paper has attempted to focus on professional ethics for Law Officers,
State Attorneys and Legal Officers in Public Service. We have also attempted
to show ethical challenges and the identified challenges are not exhaustive.
Several others may be identified. Ethical challenges are a litmus test for the
legal profession. There are no hard and fast rules on how these challenges are
to be handled.
constitutional guarantee.
Lord Justice
This is a rule in England and Wales stating that Barristers are available to represent everyone requiring legal
representation whether in criminal or civil proceedings, whoever they may be and whatever their cause. You may
consider this when balancing duties of professionals. Does this rule conflict with the lawyers duty to the court, to the
lawyers ethical values or to the public? Value judgments may differ and one has to justify the position one has taken.
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have to deal with other ideas, you do not give as sound and accurate
judgment as you would wish.12
This is an enormous task. This is a task to protect the profession and it
requires personal as well as group sacrifice and resistance to temptations. It is
a journey you have decided to undertake.
knowledge and skills on one hand; and behaviour and attitude on the other;
coupled with clarity of the mission, will definitely make the journey exciting.
You alone can create the conditions of success and achieve the aim of
regulation referred to in this presentation.
References:
1. The Constitution of the United Republic of Tanzania, 1977
2. The Advocates Act, [Cap341 R.E. 2002]
3. The Public Service Act [Cap 298 R.E 2002]
4. The Office of the Attorney General (Discharge of Duties) Act
5. The National Prosecutions Service Act, No 27/2008
6. The Public Leadership Code of Ethics Act, [Cap 398 R.E 2002]
7. The Interpretation of Laws Act, [Cap 1]
8. Fauz Twaib, The Legal Profession in Tanzania: The Law and Practice, (Law
Africa, 2008)
9. Jeremy Bentham, The Principles of Morals and Legislation, Great Books in
Philosophy( 1781) re-published in 1988 by Prometheus Books
10. Brian Cronin, Value Ethics: A Lonergan Perspective, No 13 Consolata
Institute of Philosophy, 2006
11. Rod Hague & Martin Harrop, Comparative Government and Politics, An
Introduction, 1991
12. U.K General Council of the Bar, Quality of Justice: The Bars Response,
1989
Quoted by Justice J.N.K Taylor in his seminal paper, The Forensic Duties and Responsibilities of State Attorneys, in Vol.
XV Review of Ghana Law, Council for Law Reporting Publication, 1983-86 at p. 192-3.
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13. Robert Hoyk & Paul Hersey, The Ethical Executive: Avoiding the traps of the
unethical workplace, Stanford Business Books (South Asian Edition) 2009
14. J.N.K Taylor, The Forensic Duties and Responsibilities of State Attorneys,
Review of Ghana Law, Vol. XV, Council for Law Reporting Publication,
1983-86.
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