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THE LAW SCHOOL OF TANZANIA

LS 102: Professional Practice and Ethics Module


Lectures and Seminars for the Eighteenth Cohort

LECTURE 6

PROFESSIONAL ETHICS FOR STATE ATTORNEYS


AND LAWYERS IN PUBLIC SERVICE

[By Justice Frederick Werema, former Attorney General of the United


Republic of Tanzania.]

Lecture delivered on 16th April, 2015 in the Multi-Purpose Hall, the Law School
of Tanzania, 0900-1100hrs

PROFESSIONAL ETHICS FOR STATE ATTORNEYS AND LAWYERS IN


PUBLIC SERVICE
By Justice Frederick Werema1

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

subscribes to protocol, custom, propriety, observance of decorum, being polite to


colleagues or clients and members of public; and generally having good manners. It
involves dressing, smartness, eating habits that do not put the profession to disrepute;
and behavior that does not exhibit moral turpitude. Regulation is meant to set written
standards as transparent as it can be afforded or a framework within which the
fraternity professing a profession must adhere to while rendering services. The written
standards are supplemented by unwritten rules. Every member of the fraternity will
be bound by such standards in public and in private endeavours. I need to add, and
would do so many times later, that the ethics and values that have been unraveled
during this week are important. They are useless if are not followed consciously by
4 See Jeremy Bentham, The Principles of Morals and Legislation (1781), Great Books in Philosophy, Prometheus Books
(1988). Bentham had found the judicial system to be hypocritical and corrupt. His fascination with the fundamental
ideals of the law steered him towards philosophy and science in an effort to develop standards that could ground the
social order. His reformist tendencies are reported to have been significant in the development of a system of ethics
known as utilitarianism where human action was to be judged by the amount of pleasure and pain it produced. I
recommend that the work be read to supplement any other literature on this subject.

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:

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.

In the operationalization of the Constitutional mandate of the office of the Attorney


General, the Office of the Attorney General (Discharge of Duties) Act, No.4/2005 was
enacted and it applies to persons who perform or discharge legal functions in the
office of the Attorney General and other offices in the public service who, by virtue or
nature of their job description are required to seek or consult for legal advice from the
office of the Attorney General. This Act must be read together with the National
Prosecutions Service Act, No. 27/2008 that provides for the establishment of a
Prosecution Service under the Director of Public Prosecutions with added functions of
monitoring, supervision and coordination of criminal investigation. This is a function
that will require high moral and ethical values in assessing collected evidence against
accused persons in police investigations or those investigations by the Prevention and
Combating of Corruption Bureau, adherence to the Criminal Procedure Act and
procedures in other penal statutes other than the Penal Code; and boldly making a
decision to or not to prosecute. A law officer or a state attorney or a legal officer has
a professional duty to act fairly, independently and ethically in his duties.

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 Code of Ethics will extend to Attorneys carrying the

functions of the Administrator General, Registrar General, Official Receiver and


Public Trustee as stipulated in Section 8 of the Act because they are legal functions
falling under the direct mandate and supervision of the Attorney General.

The Code of Ethics:


The Code of Ethics for Law Officers, State Attorneys and Legal Officers in the Public
Service is contained in a Schedule made under Section 27 of the Act. This Code state
itself that it is supplementary to the Public Service Regulations, 20039 and the Rules
of Professional Conduct and Etiquette of the Tanganyika. What that means is that
where there is a void or inadequate rule or norm, reference shall be made to the
Regulations or the Rules as the case may be.

The following are the required

minimum and basic values of ethics:


(a) Officers covered by this Code are directed to perform their functions and
discharge their duties with Integrity. The elements of integrity include:
(i) respect and compliance with the laws; (ii) conduct that promotes public
confidence, the integrity of the Public Service, office of the Attorney
General and the Legal profession; and (iii) not to allow outside interest to
compromise or in any other way jeopardize the integrity of the legal
profession, independence or competence.
(b) Every law officer, State Attorney and a Legal Officer shall be honest and
candid when discharging official duties. These are two requirements of
value. Being honest is critical and being candid is a milestone that the law
provides for.
(c) Law officers, State Attorneys and Legal officers have a duty to the
Government, the public and to him or herself to perform functions and
discharge duties in a competent manner; and in addition, is obliged and
8 The agency referred here is the Registration, Insolvency and Trusteeship Agency or in its abbreviation (RITA), which
carries the functions and duties, referred to in Section 8(2).
9 Applicable also are The Public Service Disciplinary Code of Good Practice G.N 53/2007 and the Code of Ethics and
Conduct for the Public Service, the Standing Orders, 2009 made under that Principal Act.

expected to handle matters without undue delay, risk or unnecessary


expenses to the Government.
(d) There is an outstanding obligation to Law Officers, State Attorneys and
Legal officers to ensure Quality of Service. Any officer governed by this
Code has a duty to serve the Government and the public in a
conscientious, diligent and efficient manner in order to provide quality
service.
(e) The Code provides for confidentiality. It bounds every officer to a duty to
hold in strict confidence all information concerning the business and
affairs of the Government and the public generally where the information
is acquired by virtue of office and except where the disclosure is expressly
or impliedly authorized by the Attorney General, or required by law. This
however, does not include matters pleaded or documents filed in support
of pleadings by a Law Officer, State Attorney or a Legal Officer. The
confidentiality of lawyer-client relationship is a matter calling for
appropriate ethical conduct in public. You have probably come across
lawyers discussing issues of conduct of cases or routine office
correspondences in social gatherings.

Attorneys in public service are

restricted to do so. Unauthorized disclosure of official information shall


make one to be liable to disciplinary action or prosecution under the
National Security Act, Cap 47. It may be act of misconduct or a crime to
do so.
(f) The other Code rule is on Justice and the Administration of justice.
Justice and administration of justice is a fundamental government policy
as indicated above. In this respect, all Law Officers, State Attorneys and
Legal Officers are bound over to the following obligations; (i) encourage
public respect for justice and to uphold and try to improve the
administration of justice; (ii) a duty to treat the court with candour,
courtesy and shall not attempt to influence court decisions by use of
deceptive or reprehensible methods; (iii) a duty to deal with other lawyers
fairly, courteously and in good faith; and (iv) a duty to uphold the integrity
and reputation of the legal profession and promoting principles of fairness,
justice and honesty.

(g) In respect to appearance, the Code requires appropriate presentation and


attire where every officer shall at all times in and outside the place of work
appear in smart, proper and decent dress and behave in a manner befitting
both the public service and the legal profession.

The value of this

requirement is to maintain the decorum of this noble profession meant for


admiration by the public and members of other professions.
(h) When discharging specific duties Attorneys the Code binds Law officers,
State Attorneys and Legal officers to:
(i) act fairly and dispassionately; (ii) seek justice leading a firm, fair
and credible evidence; and (iii) not compromise personal interest to
interest of the Republic.

Drafting of bills is one of the functions of the Office of Attorney General- it is an


important professional vocation. The Code binds a draftsman to act (i) fairly and
closely interpret Government decisions; (ii) advise and influence on the prudential,
logical and intelligible manner of presenting Government Policies into bills or
subsidiary legislation; and (iii) not compromise personal interest to the interest of the
client. The client here is the Government or a Ministry or a ministerial agency. In
relation to matters of probate and registration of births and deaths, the probate officer
who is governed by the Code is bound over to: (i) ensure that the best interest of the
testator and survivors are fairly met; (ii) when issuing birth and death certificates,
have regard to the public interest to promote peace and security by controlling
immigrants; and (iii) not to compromise personal interest to those of the Government.

The categories of specific duties extend to conduct of cases or litigation where


Attorneys are bound over to interpret provisions of the law and decisions of the courts
in good faith; to ensure that the best interest of the government or complainant are
fairly met; and not to compromise personal interest to interests of the client. If the
law is ambiguous or unclear or does not reflect a plain meaning of the government
policy it is likely to cause hardship to those who are interpreting the law and probably
miss the mischief it meant to cure.

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
9

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.

One has to read these provisions

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:
10

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.

This definition is general implying that categories of what may be regarded as


misconduct are never closed. Is this a notion of soft law as referred to in the Code
for Good Practice?

The Standing Orders prescribe what it refers to as particular

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

11

n) Contravention of the Code of Ethics and Conduct for Public Service,


Professional Code of Ethics and Conduct or the Public Leadership
Code of Ethics.
General and the particular provisions are applicable to the legal professionals in
public service. Implied misconduct behavior in the Office of the Attorney General
(Discharge of Duties) Act could fall under Section 19 where an officer render advice
in the specified matters without approval of the Attorney General. The specified
matters are:
1. Interpretation of the constitution;
2. Any matter relating to international agreements and treaties;
3. Any matter which the law reserves for the Attorney General;
The other categories of misconduct behavior are found in Sections 20 and 23. The
former relates to an officer who breaches the terms and conditions set by the Attorney
General for the officers participation in a consultancy. The latter relates to an officer
who makes a decision to or in disregard of the opinion of the Attorney General.

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.

Enforcement of the Code of Ethics and professional Conduct of Law Officers,


State Attorneys and Legal Officers in the Public Service:

There is a sufficient regulatory framework for Attorneys in public service as we have


noted above.

Incidences of breach of ethics by the officers are not pronounced

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
12

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.

As we have seen from above, a breach of the Code of Ethics is regarded as


misconduct. It attracts punishment including dismissal from the service.

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.

These offices are not offices of private advocates and

individual attorneys are acting on instructions of superiors and where legal


opinions are given on an issue, the likelihood of an attorney being
overruled on his opinion on a policy consideration is not farfetched. In
appropriate cases, the right would be to decline the assignment on the
basis of self-conscientious or be held liable for disobedience.
13

Psychologists argue that obedience is an impulse overriding training in


ethics or moral conduct. 10 I have no doubt if an officer makes a case
objectively, reassignment to other officers is viable.
(b) There are adverse effects on low remuneration and emoluments to the
State Attorneys and legal officers. Although corruption may not be caused
by inadequate remuneration, inadequate remuneration and emoluments
could be an incentive for rent seeking conduct. There are touching cases
of empathy to State Attorneys and Legal officers in public service, such as
lack of accommodation facilities and transport that expose them to
compromising situations. They rent in private houses and perhaps in
unsafe areas.

The salaries are inadequate for them to afford suitable

apartments or town houses. They live with offenders or people being


prosecuted or with claims against government. What will you do if you
are in such a corner and you are renting a house only to learn that the
owner is an accused in a drug trafficking case you are prosecuting? This
is a noble profession and resistance to temptations is a pillar to the
profession.
(c) The Attorneys are required to save the government and the public
conscientiously, diligently and efficiently. Yet, attorneys do not receive
presentations by ministries or departments when public complaints or
threats of litigation are received. Even where a legal opinion is sought,
full facts and history of a subject are rarely given. No professional legal
opinion can be given when facts are inchoate or not given. The Standing
Orders for the Public Service, 2009 (G.N 493/ 2009) issued under Section
35(5) of the Public Service Act requires that the Attorney General be
consulted before compensation is made or refused on a matter which
might be taken to court or before Ministries or department respond to legal
queries.

In several cases this requirement is ignored.

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.

Supporting staffs are vital

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.

Lack of preparation for court

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.

Attorneys are not

financially motivated. Training in communication skills and in English as


a language of court and a language of business is important. There are
lapses in mastering English as a language of communication and this
paradox has a bearing on the competence of attorneys. Communication
skills in English are a challenge that should be combated with zeal because
it puts the profession into disrepute and ridicule. The Bar should consider
holding seminars dedicated to English for Lawyers.
(f) Civil cases and criminal prosecutions take a while to begin and conclude.
Lapses occur among witness to recollect facts of events that had occurred
in the past. Will it be a breach of a Code of Ethics where an attorney has
taken time with a witness to refresh his or her memory? What if he

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coaches the witness in order to advance his case? An attorney is allowed


to refresh the mind of a witness but it is unethical to coach a witness to lie.

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.

Each challenge to any individual and the circumstances

surrounding an individual may determine how such a challenge is to be


handled.

However, resilience and resistance by any professional to ill

temptations can overcome ethical challenges. I have attempted to underline


the essence of professional independence to Law Officers, State Attorneys and
Legal Officers in the discharge of their functions and duties within the law.
Though the Cab- Rank Rule 11 which apply to advocates may not be
applicable to prosecutors, but is ethical not to be conviction minded by all
means.

Persecution is not prosecution.

This is a rule of significant

constitutional guarantee.

In conclusion I would like to refer to observations of our predecessors in the


legal profession. We have to draw warning and inspiration from this heritage.
A professional lawyer, as a human being, lives in a dynamic society and
influence of his class of associates cannot be underrated.

Lord Justice

Scrutton while addressing the University of Cambridge Law Society on 19


November 1920 observed:
The habits you are trained in, the people with whom you mix, lead to
your having a certain class of ideas of such a nature that, when you

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.

Your competence, that is,

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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