“banner728.gif"

Lawyers, the law, and the public’s role in legal discourse

Lawyers, around the world, do not quite want the general public to scrutinise their work. It is only recently that Zambian lawyers were ever permitted by the Law Association of Zambia (LAZ) to make legal comments to the public. Even then it appears like permission must still be had. This idea that lawyers are so learned that they should not expose their debates to the public is as old as the legal profession itself. The sacred work of lawyers, it is thought, must be demonstrated in the confines of the court, where there is a legal procedure and where judges rule the world. However, this dominant character of the legal profession is being significantly challenged in modern Zambia. First, unlike in 1970, we now have a lot more law schools. With the rise in the number of law schools has come to a very welcome thirst for legal knowledge and with it, the desire to engage in frequently, unending, legal debates. Second, the number of Zambian lawyers has doubled in the past five years, alone. Almost 2,000 lawyers now adorn the beautiful edifices of our Republic. This unprecedented number is a challenge as lawyers now must compete for attention and business, a little bit more than what used to obtain in the past.

Further, with the rise in the population has led to an impatience for structured legal services. Lawyers are now being asked to solve legal problems in real-time. Besides, the public now can easily google the law and apps such as Apptorney are helping to turn ordinary Zambians into readers. You can argue about the quality of Lawyer Google. But one thing cannot be denied. Google is challenging the way people consume professional knowledge and advice. Third, globalisation and the growth of technology will challenge the ancient narrative that restricted lawyers to their offices (called chambers) and to court. Facebook, Twitter and Instagram now mean that the population is anxious and impatient to wait upon the courts to debate legal matters that concern the population. With all these forces beating upon the old profession, lawyers in Zambia, and around the world, must change with the times.

Closely connected with all these forces that are acting against the traditional legal profession, is Zambia’s democratic spirit that is seeking accountability from all the structures of the Zambian Republic. Gone are the days that a president will say a thing, to which everyone agrees. In our time, people disagree with power, even before power utters a word or two. Regarding courts, Zambians are very respectful of judges. However, after judges have had their say, Zambians are having a way to comment on what judges are saying. Democracy is now the luxury of all, where they can pick up a decision of the High Court, read it for themselves and question its logic if any. Zambians must respect the rulings of the courts of law, but closely connected with this respect for the courts is a democratic spirit of debating and engaging with the reasoning of courts and the judges. Judges must begin to make sense, not only to the lawyers, that appear before them but also to the people of Zambia. If judges in Zambia, Canada or otherwise, do not make sense; the people will hold them responsible. Not so much regarding the law; but their employ of common sense.

Judges and lawyers now more than ever must realise that their work is not concentrated on their jurisdiction any more. The decisions of the Zambian courts is being scrutinised by their colleagues in South Africa and Canada. If you write a decision, it better make sense. It is this transnational accountability that works well for the legal profession. Let us take contracts, for example: as a business attraction, Zambia is now home to investors who bring their money to try and make a ngwee or two. For them to do business here, they will have contracts drafted by both foreign and local lawyers. These contracts have repercussions beyond the borders of Zambia. If and when Zambian courts interpret these contracts, the courts must do so in a way that at least makes sense. No one can argue about the law or the outcome, but the transnational ideals of the rule of law call upon our judicial system to adhere even to the most minimum of standards in adjudication.

We have had our say about ZCCM-IH and its disputes with KCM in provisional liquidation and with Vedanta. All we have asked for is that the Zambian judicial system adheres to the most minimum standards of adjudication. Once these standards are ignored or abrogated, our legal system will become a laughingstock of the world and judges whether in London or Johannesburg could be feasting on our complacency. There is a lot that can be said about the KCM legal saga. But the genesis of it all could be traced to an ex-parte application that led to an ex-parte Order to appoint a provisional liquidator. Had that hearing been an inter-partes hearing, I do not think there would have been much uproar, at least not from the procedural perspective. Vedanta or KCM is not entitled to a particular outcome, but they are entitled to a specific process. And if that process involves judicial discretion; it is the expectation of the rule of law and the rule of common sense, that a judge exercising judicial discretion will do so in a way that makes sense. Unfortunately, courts in both London and Johannesburg have formed this habit to scrutinising our legal system and making opinions that should make us all deeply reflect on what we are doing. I surely do not look forward to another court in Johannesburg or London to say stuff that we have heard previously from these courts. But truth be told; our judicial system must at the least – listen to both sides before deciding. Even discretion that looks only to one side can prove incompetent.

Leave a Reply

Your email address will not be published. Required fields are marked *