TUMAINI UNIVERSITY

IRINGA UNIVERSITY COLLEGE

FACULTY OF LAW

LL.B 2012

LEGAL ROFESSIONAL CONDUCT AND ETHICS

LECTURE NOTES

DEFINITION OF CONCEPTS

Definition of ethics

Oxford Advanced Learner’s Dictionary

 A science that deals withy morals

 Moral correctness – sets standards of correctness

 Professional ethics in general can relate to any profession:

 Medical professional ethics

 Business ethics

 Legal professional ethics

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  Ethics (also known as moral philosophy) is a branch of

philosophy that addresses questions about morality—that is,

concepts such as what is good and what is evil, what is right and

what is wrong, what is justice and what is injustice, etc.

 As moral philosophy-

 ethics may be looked at as a systematic study of the

ultimate problems of human conduct.

 Ethics like morality is based on the cultural values of a

given society and individual behaviour is patterned

according to the culture of that society. Such patterns of

behaviour are popularly called customs.

 What is ethically or morally accepted as being good over a

period of time becomes a custom of a particular society.

 Customs are rules that govern the behaviour of individuals in a

given society. Notorious customs are referred to as customary

rules/laws

Principles of ethics

 Ethics are made up of principles which set up standards within

which persons must act and/behave

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 A lawyer should act with honesty, compassion (pity for the

suffering of others, making one want to help them), continence

(control of one’s feelings especially in sexual matters) and self

restraint in one’s behaviour or in eating and drinking) with a view

to conserving and enhancing confidence and trust in the integrity

(quality of being honest and morally upright), objectivity and

impartiality of his office/business.

 A lawyer should perform his official duties and arrange his

private affairs in such a manner that the two do not conflict. And,

where the two do conflict, he/she should resolve in favour of

office/business. Do not put yourself in a position where your

personal interests conflict with those of your office/business.

 A lawyer should make his/her decisions in accordance with law,

in the public interest or interest of the business /office and with

regard to merits of each case.

 A lawyer shall not knowingly take advantage of or benefit from

information which is obtained in the course of official duties and

responsibilities,

 A lawyer is not expected to solicit or accept transfers of

economic benefits other than incidental gifts, customary

hospitality or other benefits or nominal value unless the transfer

Is pursuant to an enforceable contract or property right.

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Relationship between law and ethics

Ethics Law

 Sets standards of what is  Rules made to sanction bad

good/bad behaviour behaviour

 Based on conscience, beliefs  Formulated and imposed by

the state or agreed between

 Sanctioned by public the parties involved.

opinion, disapproval,

possibly ridicule and  Has fixed and powerful

exclusion from a particular sanctions

society

 Has regard to thoughts and  Has regard to acts/omissions

feelings

 Legal rules are of general

 Moral principles must be and absolute application

applied with reference to

individuals and

circumstances.

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Why ethics?

Principles of ethics set the moral standards of behaviour.

 Professional ethics set standards within which a

professional must act or must not act.

 Medical ethics provide standards within which medical

personnel must act.

 Business ethics set standards within which business

community must act

What we gather from all the above definitions and principles is that

morals and ethics are intertwined and that they refer to the norms of

what is wrong and what is right in our dealings as human beings.

Coming to the course legal professional ethics, we have in mind the

etiquette of the legal profession. This involves: what its members can

do, and what they cannot do; what is the relationship and the duty of

the members of the legal profession to their fellows; what is the

relationship and the duty of the members of the legal profession to the

members of the public; the relationship and duty of members of the

legal profession to their clients and also among themselves that is,

between the advocates of the opposite parties to a litigation.

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A number of these relationship and duties are contained in legislations

and rules of conduct. But the baseline is the unwritten code

supposedly to be the property of every member of the legal profession.

Each member is supposed to know what she or he can or cannot do in

order to remain a faithful member of the legal profession.

Definition of Profession

For purposes of professional ethics, Harold Perkin has defined the word

profession as an especially desirable and dignified occupation. It

implies intellectual training and an expertise which is largely mental in

character. It may be described as a body of persons recognized as

having special skills and learning in some field of activity in which the

public needs some protection against incompetence. The standards of

skill and learning of that profession is to be prescribed by the

profession itself.

So, in that way, we speak of the legal profession, the engineering

profession, accounting profession, the medical profession, etc.

Law as a profession (legal profession)

 Lawyers form the legal profession. So, in a very broad sense, the

legal profession encompasses all lawyers. But the term is used

restrictively to refer only to the members of the bench or judicial

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 officers, as they are also known, that is, holders of judicial offices

as defined in the Judicial Service Act, and members of the bar.

 When we talk of the judicial profession in Tanzania we are talking

of two structures of the legal professions: that of the Mainland

Tanzania and that of Tanzania Zanzibar. However, in this course

I shall confine myself to ethics for the legal profession on the

Mainland Tanzania. I will give the legal profession structure of

Zanzibar as a matter of interest only but this course will

concentrate with ethics on the Mainland.

History of the legal profession in Tanzania

The historical background of the legal profession that we have in

Tanzania today, traces its origin from England. In England, the legal

profession is one of the professions recognized for centuries now.

From its English origin, the legal profession is basically created by

statutes. But the English legal profession slightly differs with the legal

profession as understood today in Tanzania.

In England, the legal profession is comprised in two branches. These

are the barrister and the solicitor. A solicitor need not necessarily be a

lawyer by training but a barrister must be. So, in the English legal

profession, there is a clearly defined distinction between persons who

could only stand beside and speak for another, but subject to

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correction and those who have the right of audience, to legally

represent others. Thus, for centuries in England, only barristers had

the actual right of audience in courts. A litigant in England instructs a

solicitor, who in turn instructs a barrister who has a right of audience in

court, and especially higher courts. This makes legal services very

costly as one has to pass through more than one instruction.

The history of the legal profession in Tanzania is shorter and simpler

compared with its English counterpart. It emerged with the colonial

rule in the 19th century. The present common law system that is

followed in Tanzania was introduced by TOC 1920. Therefore the basic

structure of the current legal regime within which the legal profession

in Tanzania operates has much to do with its introduction in early

1920s.

But even before, the English legal profession was imported into

Tanganyika via India where it was long established. This was done

through the Indian Acts (Application) Ordinance, 1922 which allowed

the application of Indian laws to Tanganyika, including the application

of the Indian Legal Practitioners Rules. With these laws which

supplemented the TOC 1920 a new legal system which is based on the

English common law was formerly installed in Tanganyika.

Following these new developments, a system was introduced which

provided for the admission of professional lawyers in the Tanganyika

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territory. However, the initial legal profession was dominated by

foreign lawyers. The rules required that a person seeking to practice

law in the territory must have been admitted as a member of the Bar

in the UK, or as a solicitor of the Supreme Court of England or other

territories in the British Empire. The main difference between the legal

profession of Tanganyika (until today) and the English legal profession

is the fusing of the two branches of the English legal profession to be

one. So, advocate (who were called Legal Practitioners at the time)

performed the roles of both barrister and solicitor. But as I said,

lawyers were foreigners, mainly from England, India and other British

colonies.

This trend continued until 1954 when two important laws to the legal

profession in Tanganyika were enacted. These were the Advocates Act

(then Ordinance) No. 25 of 1954 Cap 341 and the TLSA (then

Ordinance) of 1954 Cap 307. The Advocates Act, consolidated the law

relating to advocates in Tanganyika while the TLSA created the Bar

Association of Tanganyika.

In 1963, for the first time, the Advocates Act (Ordinance) recognized

law degrees from Tanganyika as a qualification to practice law in

Tanganyika.

The then newly established faculty of law of the University of East

Africa at Dar es salaam (currently UDSM) became the first institution to

issue law degrees in Tanganyika.

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 Acquisition of Legal Profession and Qualification in Tanzania

In order for a person to become a member of the legal profession in

Tanzania, like in many other countries, he/she has to follow a long and

sometimes tiring route. The issue of the acquisition of legal profession

and qualification therefore relates to legal education for general

practice of law and the procedure for the enrolment and admission to

the Bar for practice of law as an advocate.

Legal Training in Tanzania

THE COLONIAL PERIOD: LEGAL TRAINING AT THE INNS

Before the establishment of local legal training in Tanzania, a

prospective lawyer had to undergo training overseas, mostly in

England and India. In India, one would have attended university and

graduated with the LL.B degree. In England, the main system of

training was at the Inns of Court. Very few East Africans went through

this, compared to their West African counterparts. And even the few

East Africans who did were mostly of Asian origin, due to the various

reasons including division of opinion during the colonial period on

providing higher education to Africans.

Voices raised against it spoke of the creation of ``ivory towers’’, a

reference to what was considered a luxury, namely, the production of

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an intellectual African elite remote from its own people. Counter –

arguments were put forth by those who dismissed such allegations as

exhibiting the outmoded colonial belief that the best was too good for

the African.

The training of overseas barristers at the Inns in England had both an

economic as well as a political benefit to the colonial masters. It

provided the Inns with substantial income from admission and call

fees. Furthermore, the training strengthened considerably the ties that

existed between the colonies and the English legal profession and legal

systems and the entire British nation.

There was also a sincere belief among English barristers that by

inculcating British ideas they were contributing to political stability and

justice in the colonies. It was by creating legal professions in the

colonies that the development of the British legal system was made

possible. This historical influence still exists in the main legislation

governing legal practitioners in Tanzania, both on the Mainland and in

Zanzibar, especially in the professional qualifications required for

admission and rules of conduct and ethics.

The system of training at the Inns, was both inadequate and

inappropriate for the fused profession in the colonies. Trained as

barristers in England, legal practitioners in Africa tended to regard

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their job as litigation and rarely considered I their duty to encourage

out-of-court settlement. They were not equipped to prepare cases for

trial and their interest in drafting or advisory work was minimal. It was

thus obvious that training in England as either a barrister or solicitor

was seriously deficient as a preparation for practice in a fused

profession. Most of them were trained in only one half of the tasks they

were called therefore, received little attention. The same applied to

English barristers and solicitors who decided to move to the colonies.

UNIVERSITY LEGAL EDUCATION IN TANZANIA

In 1960, due to the shortcomings in the training schemes available in

England for students originating from Africa and process of

decolonisation that was sweeping across most of the continent, the

British government appointed the Royal Committee on Legal Education

for Students from Africa. The Committee was charged with the task of

inquiring into the problem of legal education for Africa and making

recommendations for a suitable training scheme. It was chaired by

Lord Justice Denning, Master of the Rolls.

The establishment of the Law Faculty at Dar-es-Salaam

The Denning Report recommended that one law faculty would suffice

for the whole of East Africa. Post – graduate professional training was

to be offered at a Law School. The recommendation therefore resulted

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in the formation of the first law faculty in the University College, Dar-

es-Salaam of East Africa 1961. Its curriculum was modelled on the LLB

programme of the University of London, which maintained close links

with Dar-es-Salaam Faculty. Even the Faculty’s first graduates

obtained an ``LLB, (London)” degree.

Because the Faculty was producing lawyers for the whole East African

region, not all of its students were Tanzanians. By 1970, however, the

Faculty had ceased to be part of the University of East Africa and was

incorporated into the newly established University of Dar-es-Salaam.

Kenya and Uganda started producing lawyers at the Universities of

Nairobi and Makerere respectively.

The Present University legal education in Tanzania.

So, for many years since independence, the UDSM was the sole

institution providing for University legal education in Tanzania,. It has

thus influenced the nature and structure of legal training in the

country. But since the introduction of the policies of liberalization and

the privatization of the economy, the private sector has been gaining

more and more importance. This has in turn changed the approach of

legal education. With the coming into being of privately owned

Universities and other newly established public Universities, and the

law programmes they offered, the history of legal education in

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Tanzania completely changed. TU-IUCo became the 1 st privately owned

University to provide a law degree.

The Future Role of University Legal Education

The LSRP which started way back in 2003, has also led to various

changes in legal education, and in finding out ways through which it

could respond to the general trend the country as a whole is taking. At

the same time, there are ongoing debates as to the duration of legal

training in the country. The UDSM has changed the duration for law

training the former 3 years to 4 years.

The reasons:. Emphasis will in future be placed in producing lawyers to

service the private sector, both as private practitioners and in-house

lawyers for the many private enterprises that are mushrooming in the

country, both indigenous and foreign. Hence they consider that the

current 3 years are not sufficient for the coverage of such courses.

Those faculties which offer law degree within a duration of 3 years

(including IUCO) argue that it is impossible to exhaustively training law

in class, even if trained for 10 years. Law training is life long process,

so there is no need of purporting to adequately training law for 4

years.

However, there is an ongoing process of higher education

harmonization process. The plan is to have all the 5 EAC member

states maintaining a uniform training policy and system, esp after the

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opening of the EAC markets. Unfortunately, in all other EAC members,

except Tanzania, law is trained for 4 years. Hence, in harmonizing,

there is likelihood that law degree training will be changed to 4 years

in all the Universities in the EAC.

The Internship Programme

The previous situation was that after completing the LL.B programme,

a law graduate was, and still is, obliged to go through certain other

procedures before being considered as a lawyer, including being

admitted to the Bar. Before 1994, one had to undergo a nine – month

internship programme organized by the Attorney general’s Chambers

immediately following the end of studies. It involved for months of

``field training” in the various departments of the Ministry of Justice:

the Directorates of Public Prosecutions, Civil and International Law, the

Administrator General (who is currently the Registration, Insolvency

and Trusteeship Agency-RITA) and the Chief Parliamentary Draftsman.

The rest of the time was spent equally in the Judiciary (mostly working

with Resident Magistrates), and I the Tanzania Legal Corporation. From

1995, the internship programme was reduced to six months, with two

months each being spent in the Attorney General’s Chambers, judiciary

and the TLC.

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Participation in the internship programme was a necessary pre-

condition for anyone who wishes to be admitted as an advocate. Now,

despite having helped as a stop-gap for law graduate, it has been

perceived as a failure and it lost its credibility it initially enjoyed.

Furthermore, following the establishment of new law faculties in the

country, the number of law graduates increased tremendously, so

much that the Ministry of justice and Constitutional Affairs could not

take them. Previously, the number of law graduates who are supposed

to attend the internship programme did not exceed 100 per one year.

Previously the maximum number of a law class at the faculty of law of

the UDSM was only 60 students, if they all finish their law degree

programme.

Plus other law graduates from other places, eg. India, UK, Canada, etc,

they all totalled about 100. But today, law students who graduate in

the country per year exceed 1000.

Before 1993, after internship, new law graduates were obliged to serve

the government for at least five years under a bond they signed before

beginning their degree studies. The bond was a necessary pre-

condition for obtaining government scholarships. The government

would appoint them to occupy various positions in the public sector,

without their being enrolled as advocates. Since independence

unemployment for lawyers was not a problem. Each year, the sixty or

so new law graduates were assured of being employed somewhere

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within the public sector. So, every law graduate coming out university

was absorbed in the many government corporations.

The circumstances have now changed dramatically. In

compliance with conditionalities imposed by the International Monetary

Fund, the Government relinquished its control over most of the public

enterprises it used to own and control. It, therefore stopped to

continue to be the country’s biggest employer. It has thus waived its

rights under the five-year bond to recruit new graduates, which applies

to most graduates. Job placements are now largely done through the

mechanism of supply and demand in the “Open” market. As a result,

since 1989 unemployment has hit almost all university graduates,

apart from a few such as lawyers, doctors, dentists, and teachers, who

continued to be posted in the public sector. But since 1993, the new

policy has affected law graduates as well.

So, many lawyers who graduated after 1993 have found

themselves jobless. They now have to look to the open job market for

employment. Some of them have been forced to take up “non-legal

jobs. They indulge in anything from private business, salesmanship of

computer and information technology to sports and culture. These are

most likely to find themselves remaining, after some few years,

lawyers by name only. They would most likely forget most few years,

their law degree programmes. Some find jobs in chambers of

practising advocates. These will benefit from some kind of unofficial

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pupilage whereby they learn and acquire various skills in advocacy.

The skills include drafting, consultancy, preparation of legal opinions,

etc. Such graduates are in fact more likely to pass the interviews

necessary for admission to the Bar than those employed elsewhere.

There have been a number of problems normally faced by law

graduates who work on pupilage bases with practicing advocates.

These include considerable legal restrictions on their remuneration and

the right to prepare certain documents. (Not to touch certain files).

THE QUALIFYING PROGRESS

What we have been dealing with relates to academic legal education,

and how one could attain the formal qualifications to become a lawyer.

But that alone does not make one an advocate or legal practitioner. In

order to become an advocate, one needs to go through another

produce of qualification.

So, the procedure for admission to the bar as an advocate previously

followed certain patterns.

Tanzania enjoyed a unique position in Commonwealth Africa in having

a relatively small number of law graduates, and an even smaller

number of practitioners.

The authority responsible for the admission of advocates is the Chief

Justice and the Council of Legal Education established part III under s.

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5A of the Cap 341 (Advocate Act) . The two have been blamed for the

small number of admitted persons that has been the trend for many

years since independence. What is their role in this process? To what

extent are they responsible for the small size of the practising

profession? The existence of complaints makes it pertinent that we

address our attention to these questions.

After completing Academic studies and practical legal training in the

under the AG Chambers, a law graduate is then considered to belong

to the legal profession. He/she can be employed as SA, Legal Officer,

etc in the public and private sector.

Now, any law graduate who desires to be an advocate must first, in

addition to the above qualifications; he/she must undergo a pupilage

stage. He/she has to be attached, on full time basis to a practising

Advocate for not less than SIX months, where is supposedly has to

learn a number of advocacy skills, including, but not limited to

attending courts sessions (carrying the advocates’ briefcase) and

observing all courts processes, drafting all types of legal documents,

filing different types of court documents, interviewing clients, engaging

in practical aspects of registration of various legal entities, eg,

companies, NGOs, Associations, etc, learn how to manage clients

accounts, and must have fully learned practically all other advocacy

skills.

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Then he/she now has to apply to the Chief Justice (who is a chairman of

the CLE) for enrolment as an advocate.

He/she has to prepare an application (known as a petition) for his

name to be entered upon the Roll of Advocates. The petition must be

in prescribed form. The petition is addressed to the Chief Justice of

Tanzania and submitted in duplicate.

The petition gives a description of the petitioner (including his full

name, date and place of birth, and citizenship) and his educational and

work background. It must also contain statements on the period and

capacity in which he has worked since obtaining his law degree, and

that he is not and has not been subject to any criminal or disciplinary

proceedings.

Attached to the petition must be a copy of the petitioner’s LLB or other

recognized certificate, and two letters of recommendation, one from

the petitioner’s employer, the other from a practising advocate.

(pupilage).

A file in the petitioner’s name is then opened in the officer of the

Registrar of the High Court. The Registrar then scrutinizes the petition.

If the Registrar is satisfied that all the necessary conditions have been

fulfilled, the Registrar will put the name of the petitioner in the next

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available list of candidates. The candidate will then have to wait for his

turn to appear before the interview of the Council of Legal Education.

It is the practice of the Registrar’s office to inform the petitioner that

he/she has been put on the list of those who have fulfilled the

conditions necessary for appearance before the Council. This

information comes after a date has bee fixed for the interview. And this

is usually some months after submitting his petition.

So, there clearly provided Conditions to be fulfilled before

Petitioning

That is, Professional Qualifications.

The qualifications necessary for admission as advocates are set out in

section 8 of the Advocates Act. Any person who meets the

qualifications may petition the Chief Justice to be admitted as an

advocate. Under subsection (1) of section 8 of the Advocates Act, a

person may apply for admission:

(1) (a) If he holds one of the following professional qualifications,

that is to say:

(i) If he is a holder of a degree in law granted after examination

by the University of Dar-es-Salaam or such other university or

other institution as may be recognized by the Council for the

purposes of this section;

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(ii) If 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..

(iii) If he is a solicitor of the Supreme Court in England, northern

Ireland or the Republic of Ireland, a Writer of the Signet, a

solicitor in the 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 which for the

purposes of this sub-paragraph; and

(b)Subject to the provisions of subsection (1A), if, either:

(i) 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

(ii) He has been in continuous practice as an advocate in Kenya,

Uganda or Zanzibar during the five years immediately

preceding his application.

Under section 1A, the Council is empowered to exempt any person

from all or any of the requirements specified under sub-paragraph

(i) of paragraph (b) of subsection (1), which relate to the acquisition

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 of professional experience. By necessary implication, this would

mean that no one can be exempted from the provisions of

paragraph 9(a) of the subsection, which require every petitioner to

hold the necessary academic qualifications.

As for the additional requirements for admission stipulated in

paragraph (i) of subsection (b) above, the Council of Legal Education

requires a person meeting the academic qualifications to fulfill the

conditions set out in the Advocates (Professional Requirements)

Regulations, 1968, which state that a prospective advocate must, after

obtaining one of the professional qualifications prescribed by

paragraph (a) of subsection 1 of section 8 of the Advocates Act or

within one year before obtaining such qualification, [have] read as a

pupil of an advocate or of an advocate in Uganda, Kenya or Zanzibar

for not less than six months or been employed in a professional

capacity for not less than six months.

A study of the practice of the Council of Legal Education shows that a

candidate would have fulfilled the above requirements by having gone

through the legal Internship programme, which began in 1973.1974. It

was also a rule of practice of the Council to require a person to have

worked in a legal capacity after his graduation for not less than two

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years, rather than the prescribed period of six months. The period of

internship also counted towards the calculation of the two year period.

But since 1994, the two – year requirement has been abandoned. From

that year, the council could accept for interview any law graduate so

long as he fulfilled the other requirements and has participated in the

internship programme, which had by then been reduced to six months.

Many new graduates took up the opportunity and petitioned for

admission immediately upon completing their internship. Furthermore,

an applicant must have attained the age of the majority (18 years or

above). The petition, in prescribed form, must be supported by two

certificates of character. No payment of any fees is required at this

stage of the application.

So, the basic qualification is possession of a university degree in law

recognized by the Council of Legal Education. The practice has been

that degrees from other universities in East Africa, other

Commonwealth countries, and their United States, have been accepted

as sufficient to satisfy this requirement.

Relevance of Post Graduate Qualifications

Generally, the law and practice require that the academic

qualifications possessed by an applicant must be at first degree level.

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Postgraduate qualifications do not count as qualifications for admission

to legal practice. Neither the degree of LL.M nor the PhD, not to

mention the Post-Graduate Diploma in Law, can satisfy the

requirements of section 8(1) of the Advocates Act.

The council of legal education does not recognize them in those terms.

What is important is that the candidate must have done certain “key

subjects” of the common law- a condition which is normally attainable

in a bachelor’s degree programme. This means that the only

qualification that would make one a lawyer is the LLB degree (or its

equivalent). Also, it must have been obtained after examination; a

provision which automatically excludes honourary degrees.

Those who do not hold University law degrees but fall under paragraph

(a) (iii) above (such as English barristers and solicitors) would qualify

by virtue of those provisions.

It is therefore theoretically possible for a person to obtain a doctoral

degree in law (whose basic requirement for admission is possession of

an LLM) without being an LLB holder, such a person does not qualify to

be admitted as an advocate. This is founded upon the fact that it is

only in the LLB programme that one can be trained in all the core

subjects of law, such as evidence, civil procedure, criminal, or torts.

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Post – Graduates training at any level is a specialized and focused

programme. It is necessarily narrow in scope and outlook. It is

therefore deemed insufficient as a preparation for the practice of law

THE INTERVIEWS

Once a person has submitted his petition for enrolment (with its

necessary certificates and testimonials) to the Chief Justice, he has to

prepare himself for two very difficult obstacles: the interviews of the

Council of Legal Education and that of the Chief Justice. A third

obstacle, that of being “unobjected to” on grounds of bad character by

members of the legal profession, relates only to his character. Fulfilling

this condition would require no preparation on his part, other than his

past conduct generally, on which any member of the legal profession

will be given an opportunity to express his objection, if any, before the

Chief Justice makes that final decision on the petitioner’s suitability as

an advocate.

Although there are sometimes some contentions within the legal

circles in Tanzania that the Chief Justice does not have some of the

powers to admit advocates’ the operative provision of the Advocate

Act, is s. 8(3) which stipulates:

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 “Upon an application being made under this section and upon proof to

his satisfaction of the qualification and suitability of the applicant, the

possession by the applicant of an adequate knowledge of the court,

and upon production of such testimonials as to character as he may

require, the Chief Justice shall,….admit the applicant to be an

advocate.”

From this provision, it clear that before a person can be admitted as an

Advocate, the CJ must be satisfied that he/she possesses the necessary

legal qualifications, has adequate knowledge of the language of the

court and that he is a suitable person for advocacy. He must also

produce evidence that is a person of good character.

In determining the various matters contained in that provision, the law

has divided the functions into two categories.

The first, relates to the qualifications (both academic and professional)

required of the applicant and his legal knowledge.

The second is that of determining the petitioner’s character and

suitability as an advocate. As I said earlier, two authorities are

responsible for determining the suitability of a person as an advocate.

The Council of Legal Education and the Chief Justice.

The Council of Legal Education

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The Council of legal education is a statutory body established in 1963

under section 4 of the Advocates (Amendment) Act, now incorporated

in the advocates Act. The Council consists of five members, who are.

(1) The Chief Justice or his representative, who sits as the

Chairman of the Council.

(2) The Attorney General or his representative.

(3) The Dean of the Faculty of law of the university of Dar-es-

Salaam or his representative

(4) Two members elected by the Tanganyika Law Society.

The legal function of the council is “to exercise general supervision and

control over legal education in Tanzania mainland and to advise the

Government in relation to those matters”. Over the last years, this

council has unfortunately performed very little in terms of its function

as imposed by the law. Hence, its only major activity at present is to

examine those who have petitioned the Chief Justice for admission to

the Roll of Advocates.

The Interview of the Council of Law Education

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

28
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.

With the letter of invitation for the interview of the council of legal

education, a petitioner (called a candidates” for the purposes of the

oral examination), is also sent a list of specimen statutes that he is

supposed to read in his preparation for the interview. Since 1994, it

has also been the practice to supply the candidates with a list of

specimen questions to help them in their preparations. There have

been mixed feelings about the usefulness of the two lists. The list of

statutes has invariably contained almost the entire collection of

important legislations. One such list may consist of up to four hundred

statutes. Thus, instead of helping the candidates, the list has actually

played a major part in confusing them, and generally making the

interview seem almost impossible.

The list of questions has helped many candidates in their preparations,

which can now be much more focused and predicable.

29
During the interview, each member of the council is given an

opportunity to ask the candidate a specific number of: principal”

questions, usually three (sometimes more, depending on the number

of members present), each of them followed by several supplementary

questions. In reality members may classify one question in terms of a,

b, c, etc. The council is empowered to adopt its own procedure and it is

not bound by any rules.

According to the Principal Judge, who is the Chief Justice’

representative and Chairman of the council, the questions asked in the

interview basically seek to establish the candidate’s general

knowledge o the law (especially procedural laws), his understanding of

legal issues, professional ethics, and the language of the court.

The language of the courts” here means English, and more particularly,

the language of the common law. This is the only language used in the

interviews. It also includes proficiency in the technical language of the

common law (including borrowed terminology such as Latin and French

– questions like “what is the difference between res judicata and

autrefois acquit’, etc).

The entire interview, usually takes about one to two hours for each

candidate.

30
The petitioner will later on, within a few weeks be informed of the

results of his interview. The result is usually either pass and referred. If

he is “referred”, he will be told after what time he can made his next

attempt again at the interview before the council. Referral ranges

between three months (for a slights failure) and six months (for a bad

failure) or one year for a terrible failure. Many petitioners were used to

be referred several times before they are successful.

The list of those who passed is sent to the CJ who will also have an

interview with the candidate.

The next step for the prospective Advocate is the Interview of the

Chief Justice

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 will be invited for this second

interview. The Chief Justice also requires certain conditions to be

fulfilled. If for some reasons he is not satisfied that the requirements

have been met, he may refuse to admit the candidate. The practice

shows these conditions to be: An appropriate office, the availability of

a reasonable collection of legislations and law books, and a computer.

31
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. That is on suitability.

The physical check to determine whether the candidate fulfils the

above conditions is done by the registrar of the High Court. He then

reports to the chief justice. Because of financial constrains, it is difficult

for most candidates to personally fulfil this requirement. So they

usually opt for an alternative. They look for a practising advocate who

enters into an agreement with them, stating that they are going to

work in partnership. This is enough to satisfy the requirement.

The Registrar of the High court (usually through an Assistant Registrar)

reports the findings of the physical check to the chief justice. Of

course, where the candidate intends to join a practising advocate as a

partners, this requirement is deemed that been fulfilled without the

need to make a physical check, it being presumed that the old

advocate had already fulfilled the requirements. However, the chief

justice requires that the partnership agreement be reduced into writing

and registered according to the law relating to registration

partnerships. He must also be satisfied with the manner in which the

partners’ remuneration is to be distributed. But these requirements

appear to be relevant only when the partners (or one of them) are not

32
yet admitted as advocates. Once admitted, they can enter into any

kind of arrangements as between themselves without the chief justice

being involved.

6.2.3 Condition Applying to Lawyers in Employment.

Where a person is employed at the time of making his application,

there are certain requirements attached to his admission, depending

on the type of employment he is in these are discussed below.

(i) The Requirement of Resignation

The Chief Justice has, rule of practice, required persons in certain

kinds of employment to resign first before they can be admitted as

advocates. The most notable category in this connection has been

that of judicial officers. Before a Magistrate or a Judge can be

admitted to the Roll, he must first resign from the Bench. The logic

of this practice is obvious because, while advocates represent

disputing parties in courts, judicial officers sit to decide upon the

rights and liabilities of those parties. As a rule, therefore, they

cannot simultaneously act on both sides.

Other categories of employees who are required to resign before

admission to the Bar have been State Attorneys, counsel of the

Tanzania Legal Corporation, and other lawyers employed by the

central and local government.

33
So, generally the Chief Justice does not usually admit persons who

are still employed in the Attorney general’s Chambers’ the TLC, or

the Judiciary. He requires them to first resign from their posts before

he can admit them.

Condition on Separate Remuneration

There are other specific requirements for certain types of applicants

before enrolment. Those who are employed, and wish to continue

with their employment, must show proof by way of a written

undertaking by their employment that, once admitted, they will be

remunerated separately for work done as advocates and for using

whatever literature and material they personally own for the benefit

of their employers as advocates.

Employed advocates are also required to satisfy the Chief Justice

that they have sufficient books and legislation for their work as legal

practitioners. But they usually work only as solicitors, since court

work would entail prolonged absence from the service of their

employers.

(ii) Other Special Requirements

Certain other categories of employed lawyers are not required to

prove the above. Among these are lecturers at the faculties of law.

With the university law library at their disposal, they are presumed

34
to possess the necessary facilities at their place of work. The

requirement for separate remuneration does not appear to apply to

them either, because they are employed not as lawyers but as

academics, and legal advice is not among their job description.

However, there are other requirements imposed. Law lecturers

must produce written proof of support for their enrolment from their

Universities that they will work under the auspices of the

Universities as employees while engaging in their legal practice.

(iii) Preferences for Parastatal Employment among

Advocates

A study of the attitudes of lawyers employed in the parastatal

sector show some preference for present employment, but, like

virtually with all other lawyers, there is greater preference for

private advocacy. Although salaries in the parastatal sector are high

compared to the public sector, most employed advocates do not

equal incomes enjoyed by private practitioners. But many of them

are satisfied with being employed mainly because of the greater

security that public employment offers throughout their careers,

and prospects of promotions and power. Some of them enjoy a

company car, free accommodation and health care, allowances, etc.

(iv) Distinctions among Employed Advocates

35
 The Chief Justice draws a distinction between persons employed by

the government and those in other of employment. The few in the

Government who have been admitted cannot take out practising

certificates as others in non-government posts. They are not

allowed, so long as they are still in government employment, to

practice as private practitioners. Presumably, it is because private

practice is not compatible with their obligations as government

legal officers. Also the Chief Justice believes that before a person is

admitted, he should be able to show either that he is going to enter

private practice immediately, or that being enrolled will help him in

his work as lawyer or enhance his capacity. As he once wrote. “It is

wrong practice to enrol people just for status, meaning the desire to

be an advocate simply for the prestige the title affords a person. But

some other government employees have not encountered much

problem getting admitted. For instance, lawyers employed by the

Armed Forces have been admitted, including an Inspector General

of Police. However, before the Chief Justice admits any such person,

he demands special reason to be adduced by the candidate as to

why his case should be considered an exception.

The Requirement of Good Character

We have seen that petition for admission must be accompanied by

two: Certificates of Character”, one from the candidate’s employer, the

36
other from passing the two interviews. Yet there is another

requirement that the petitioner passes the scrutiny of the entire legal

profession and institutions involved in legal education.

The law does not expressly say what reason may prevent a person,

upon satisfying all the academic and practical requirements for

admission, from being admitted as an advocate. That determination is

left to the discretion of the Chief Justice.

So, before admission ceremony, the Chief Justice sends out a list of

those who are eligible for admission to all the institutions involved in

legal education and legal practice (i.e. the Faculty of Law of the

University of Dar-es-Salaam, the Attorney general’s Chambers, the

Tanzania Legal Corporation and the Tanganyika Law Society). The Law

Society distributes the list to every one of its members, i.e. to every

advocate.

The Chief Justice thus invites all these persons and institutions to

consider the candidates and lodge an objection If they have reason to

believe that any of the listed persons is not a fit candidate for the

noble profession of advocacy. The procedure would ensure that the

candidate is free from bad conduct in the eyes of members of the legal

profession. This opportunity has been used a number of times to

prevent aspiring advocates from being admitted. But normally even

37
when there is an objection, after about a year, most of them have been

admitted, usually after the allegations are removed or disproved.

The current procedure under the Law School of Tanzania.

The Law School of Tanzania is established by the Law School Act 2007

(Cap 425 of the Laws).

The Law School Act is therefore an Act to establish the Law School of

Tanzania; and to provide for its functions, management and control

and to provide for related matters.

The Law School provides legal practical training programme for

persons who are aspiring to be legal practitioners in the country.

Specifically, if one intends to be enrolled as an advocate, he/she must

go through the Law School. Also, if one intends to work as a public

servant in the legal capacity, one has to go through the law school. But

there are certain legal posts in the legal profession which do not

necessarily require a person to have gone through the law school. For

instance, judicial officers, Magistrates or Judges are not necessarily

required to have gone through the law school. Judicial officers are not

civil servants under the Civil Service Act.

But because nobody knows how long he/she will stay in a particular

profession, it is wise to go through the law school.

38
Admission to the programme-is regulated under the Law School of

Tanzania (Admission, Fees and Conduct of Practical Legal Training)

Rules of 2008.

But generally, in order for a person to be admitted to the programme,

that person must be a holder of an LLB Degree from an accredited high

learning institution in Tanzania mainland or from any other institution

within or outside Tanzania recognized and approved by the CLE.

In addition, the applicant must have passed the LLB core subjects:

(Contract, cp, cv procedure, etc) although this requirement may be

exempted by the Board under special cases:

The names of all those who have been admitted and registered for the

programme are to be submitted to the CLE for record keeping

purposes.

The School's Curriculum for the Practical Legal Training is enshrined in

the Law School of Tanzania (Curriculum) By-Laws, 2008, Government

Notice No. 55 of 2008.

According to these rules, the programme is to run for one academic

year

So, presently, the Law School of Tanzania offers a one-year practical

legal training programme, which is compulsory for any law graduate

aspiring to be enrolled as an advocate of the High Court of Tanzania.

39
The programme is divided into two semesters. The First Semester

covers classroom instruction for up to twelve weeks while the Second

Semester involves a period of clinical law (field placement) followed by

final written and oral examinations. Successful candidates are awarded

the Post-Graduate Diploma in Legal Practice.

It is therefore intended to cover what was to be covered in the

previous internship programme under the AG Chambers. It is therefore

supposed to be a purely legal practical training.

After classroom instruction and clinical law (field placement)

candidates do their final written and oral examinations. The oral

examination is actually very similar to that previously done under the

CLE.

And in fact, some of the panel members in this oral examination of the

school come from the CLE.

The next step for those who aspire to be advocates is the interview

with CJ as discussed above.

Next is the admission ceremony.

After having satisfied the Chief Justice that he/she has complied with

all the requirements discussed above, a candidate is now fit to be

“called to the Bar”. He/she will be officially informed about this by the

Registrar of the High Court, who will require him to pay the prescribed

40
fees to the High Court and the Law Society, and produce evidence of

such payment to the Registrar before being allowed to participate in

the admission ceremony.

A candidate must be physically present during the ceremony, which is

normally conducted in December of every year. The Chief Justice is

normally present personally at this ceremony.

At the ceremony, the candidates are called out one after another. Each

one is then individually admitted, upon the chief justice signing the

Certificate of Admission. Then the Registrar signs a practising

certificate and issues it to the candidate.

The candidate’s name is then duly entered upon the Roll, and the new

advocate appends his/her signature against it. The practising

certificate issued by the Registrar of the High Court is renewable every

year. Its validity usually runs from 1 January to 31 December of each

year. But when the renewal application is made after 1 February of the

year in question the operative date will begin on the date of its

issuance by the Registrar. Under certain circumstances, the Chief

Justice may withhold the renewal of a practising certificate.

Notary Public and Commissioner for Oaths.

In Tz, once a person is admitted as an advocate, he/she will also

perform the functions of a Notary Public and Commissioner for Oaths.

41
These functions are regulated by the Notaries Public and

Commissioners for Oaths Act, 1928 Cap 12 R.E 2002) of the Laws.

According to that Act, to practice as a commissioner for oaths means

to perform the functions and duties commonly performed by a notary

public in England.

And to practice as a notary public means to perform the functions and

duties commonly performed by a commissioner for oaths in England.

The Act provides for persons who are entitled to practice as notaries

public and commissioners for oaths to be advocates and persons

entitled to practice as notaries public and commissioners for oaths in

England.

These persons may practice as such and may levy fees for such

practice.

The Act also provides for persons who are not entitled to practice as

notaries public and commissioners for oaths to be-advocates who have

been suspended or removed from practice, until their names are

restored, or persons whose names have been suspended or removed

from the roll of notaries public and commissioners for oaths.

So, once a person is enrolled as an advocate, he/she can also apply to

the Registrar of the HC to be granted a certificate to practice as

notaries public and commissioners for oaths in Tanzania mainland. This

certificate is renewable annually, just as that of practicing as an

advocate.

42
Under s.6 of the Act, it is an offence to practice as notaries public and

commissioners for oaths or to receive any fee or reward s such,

without having a valid certificate.

But there are other persons who, though they do not hold valid

certificates may practice as notaries public and commissioners for

oaths, to administer oaths, to take affidavits, attest signatures and to

certify copies of documents to exercise power s and duties of

commissioners for oaths.

These include,

1. Persons employed by the government and who are entitled to

practice as advocates before the HC (SAs).

2. Registrars of the HC and CA including their deputies,

3. Magistrates,

4. Administrative Officers in the service of the govt.

On the part of advocate, no commissioner for oaths shall exercise

powers as commissioner for oaths in any proceeding in which he is

advocate to any of the parties or in which he is interested. (expl).

Also under s. 8 of the Act, a notary public and commissioner for oaths

before whom an oath or affidavit is taken must state truly in the jurat

of attestation at what place and on what date the oath or affidavit is

taken or made.

ORGANIZATION OF THE LEGAL PROFESSION IN TANZANIA

43
1. General:

Perhaps at the start, I should repeat two matters which I said in

the previous lectures when I was defining the legal profession.

That is:

 In a very broad sense, the legal profession is formed by lawyers.

So it encompasses all lawyers. But here we use the term very

restrictively to refer only to the members of the bench or judicial

officers, as they are also known, that is, holders of judicial offices

as defined in the Judicial Service Act, and members of the bar.

 Also, when we talk of the judicial profession in Tanzania we are

talking of two structures of the legal professions: that of the

Mainland Tanzania and that of Tanzania Zanzibar. But here we

will confine ourselves to ethics for the legal profession on the

Mainland Tanzania. I will give the legal profession structure of

Zanzibar as a matter of interest only but, as I said earlier, this

course will concentrate with ethics on the Mainland.

2. The Bench:

The bench comprises magistrates of all levels, that is,

Resident/Regional Court Magistrates, District Magistrates and

Primary Court magistrates. Members of the bench also include

justices of Appeal and Judges of the High Court.

44
 Let’s look at the bench as explained above under three parts: the

bench on the Mainland Tanzania, the bench on Tanzania

Zanzibar and the Court of Appeal with jurisdiction over the whole

United Republic.

The Bench on the Mainland Tanzania

On the mainland Tanzania the bench comprises three tiers:

i. The Primary Court

The Primary Court forms the bottom most tier and are

presided over by Primary Court magistracies (PCMs) who hold

Certificate in Law. Previously, it was from the then Institute of

Development management, Mzumbe. Nowadays training is

done at the Institute of Judicial Administration (IJA), Lushoto,

which awards Diploma in Law. The policy of the Judiciary is

that these holders of Diplomas should man Primary Courts.

Primary courts exercise jurisdiction in both civil and criminal

matters and PCMs sit with two assessors when hearing cases.

Decisions are made by majority.

Primary Courts also handle all civil cases where the applicable

law is Islamic or customary hence matrimonial matters

estates. In addition they handle matrimonial matters based

on civil and Christian marriages. However, they do not have

jurisdiction over disputes involving land. These courts,

45
 therefore, handle the bulk of litigations and they are,

therefore, the courts most known to the public. For all intents

and purposes the Primary Court constitutes the Judiciary to

majority of the people.

ii. District Courts/RMs Courts.

The second tier from the bottom comprises of District Courts.

These are presided by two types of magistrates. There are

those presided by District Magistrates (DMs) who are normally

holders of Diplomas in Law, formerly issued by the IDM,

Mzumbe, after completing a course of study of two years.

Sometimes a Senior PCM is promoted to a DM. Then there are

District Courts that are presided by Resident Magistrates, who

are holders of LL.B. degrees or their equivalent. These are

also referred to as the Resident magistrate Courts.

The amount of litigation handled by the District Court is also

very big. Apart from the original jurisdiction they exercise

they also handle appeals from Primary Courts. Again

advocates start to appear in these courts. Consequently, a

party who has filed a case or who is a defendant in a Primary

Court but desires to engage an advocate has to transfer the

case into the district Court.

46
 iii. The High Court of the United Republic:

Article 108 provides for the high Court of the United Republic or in

short ‘the High Court”. The appointment of the Judges of the High

Court is by the President of the United Republic after consultation with

the Judicial Service Commission. The High Court is the highest court of

record and has unlimited jurisdiction (Art. 108 (2)). It also hears

appeals from the District Courts and RMs Courts. At the moment the

The High Court of Tanzania is divided into four parts;

i) Ordinary High Court Registry

ii) The Commercial Division

iii) The Land Division, and

iv) The Labour Division

There is also sometimes the other unofficial divisions of the HC, eg

when the court sits as an economic crimes court under the EOCCA

1984 or when it sits as Traffic crimes court under the Road Traffic Act

1974, but otherwise these are not really official divisions of the HC.

a. The Bench in Tanzania Zanzibar:

The Constitution of the United Republic of Tanzania does not

“Prevent the continuance or the establishment of’ the High Court

of Zanzibar and courts subordinate thereto in accordance with

the laws of Zanzibar (Art.114 of the URT Constitution).

47
 So, the Judiciary in Zanzibar is regulated by the following laws of

Zanzibar:

1) The Constitution of Zanzibar of 1984,

2) The High Court Act 1985

3) The Magistrate Courts Act, 1985

4) The Kadhi’s Court Act 1985.

These laws provide for the following judicial set up: Four tiers for

secular courts and three for the religious ones:

i. Primary Courts:

Like in Mainland Tanzania, the Primary Courts from the lowest

tier and are similarly made up. They are manned by PCMS who

are suppose to be holders of certificates in law.

ii. District Court/District Kadhis’ Courts:

These form the second tier from the bottom and are presided by

District magistrates holding Diplomas in Law. These also hear

appeals from the Primary Courts.

Parallel to the secular District Court are District kadhis’ Courts for

those professing Islamic faith and only for matters of status, that

is, marriage and divorce, paternity and inheritance. The District

Kadhis’ Court are courts of first instance for matters of Islamic

law.

48
iii. Regional Magistrate Courts/Chief Kadhis’ Court:

The Regional Magistrate Courts are presided by Regional

Magistrates (RMs) who are law graduates. Every one of the five

regions in Zanzibar is required to have a Regional Court. But in

fact there are only two RMs Court in the whole of Zanzibar, one

in Unguja and one in Pemba. Appeals lie to these courts from the

District Courts.

Parallel to the RM Courts is the Chief Kadhis’ Court. This court

hears appeals from the District Kadhis’ Courts. The Chief Kadhis’

Court may be presided by the Chief Kadhi himself or by any of

his two deputies, one in Zanzibar and the other in Pemba.

iv. The High Court of Zanzibar:

Judges of the High Court of Zanzibar are appointed by the

president of Zanzibar on the recommendation of the Chief justice

of Zanzibar. These must be law graduates or have equivalent

qualifications and must have practiced law for not less than

seven years.

The High Court hears appeals from the RM Courts and also from

the Chief kadhi’s Court. The High Court of Zanzibar is the final

court of appeal for appeals coming from the Chief Kadhi’s Court

and also for the interpretation of the Constitution of Zanzibar.

49
b. The Court of Appeal of the United Republic:

The court of Appeal, as is known in short as CAT, is created

under Article 117 of the Union Constitution and comprises the

Chief Justice of CAT, or simply the Chief Justice, and at least two

other Justices of Appeal. The CAT normally sits in panel of three

Justices of Appeal when it is referred to as the full court. In

certain occasions it may sit as a full bench, in which case it will

be composed of not less than five Justices of Appeal. However, a

single Justice of Appeal can exercise powers of the CAT not

involving the determination of an Appeal. This normally happens

in what are called chamber applications.

CAT hears appeals from the High Court of Tanzania or the High

Court of Zanzibar or from a magistrate with extended

jurisdiction. The jurisdiction of CAT is prescribed by the

Appellate jurisdiction Act, 1979. This is therefore the law that

establishes the CAT by amending the Constitution However that

Act is not exhaustive and jurisdiction is also conferred on the

Court by other written laws. The Act empowers the CJ to make

rules of court regulating appeals to the Court of Appeal and other

matters incidental to the making hearing or determination of

those appeals.

50
 So, in 1979 the then CJ made the CA Rules 1979. But recently,

these rules have been re-enacted and therefore we currently

have the new 2009 CA Rules which came in force only February

laste5777ju5ukhyrhh year.

Justices of Appeal are appointed by the President of the Republic

from among persons who qualify to be appointed Judges of the

High Court of Tanzania or the High Court of Zanzibar and on the

advice of the Chief Justice who is required to consult with the

Chief Justice of Zanzibar. The administration of the business of

the Court is also to be in consultation of C.J. Zanzibar.

3. The Bar:

The bar, too, like the High Court and courts below, is not a union

matter. So, there are two separate bars: of the Mainland

Tanzania and Zanzibar.

On the Mainland there is the Advocates Act which provides for

the enrollment of advocates. Section 3 of the Act provides that

certain officers due to their offices are entitled to practice as

advocates in the courts without having being enrolled as

advocates. These officers include the A-G and the other State

Attorneys, the Registrar General and his staff, and also legal

officers in municipal and town authorities. The Attorney-General

51
takes precedence over all other advocates according to the

proviso to section 9.

Furthermore, according to that section, advocates take

precedence among themselves according to the date in which

their names were entered into the roll of advocates.

Certain other legal officers of some institutions, such as officers

of the Prevention and Combating of Corruption Bureau, are

required to appear before the courts in the execution of their

responsibilities without necessarily being enrolled as advocates.

In Zanzibar, besides members of bench as I discussed above, the

Legal Profession is also comprised of the AG of Zanzibar, the DPP

of Zanzibar, the State Attorneys (formerly known as crown

counsels) and private advocates.

Private Advocates are regulated by the Legal Practitioners

Decree, Cap 28 of the Laws of Zanzibar.

Rule 6 of the Decree allows for a “wakil,” which refers to a

person admitted to practice as such and licensed to practice as

wakil under Rule 6 of the Legal practitioners Decree. That Rule

provides that the CJ may in his discretion admit other persons of

good character and sufficient ability to practice in all or any of

the courts in Zanzibar. Like advocates, wakils shall, upon

admission, be granted a certificate to practice.

52
 I. ETHICS FOR THE BENCH:

We have to examine the provisions for ethics for the bench and

the available disciplinary measures. The second consideration

divides the bench into Judges and justices of Appeal, on the one

hand, and the magistrates of all types on the other hand.

Inevitably, therefore, we have to discuss the ethics for each of

the two sections of the bench.

However, it can be said generally that disciplinary procedures

were put in place long before the production of the Code of

Conduct, which spelled out in black and white what constitutes

ethics for the members of the bench. So, we shall look at the

disciplinary measures first and then visit the Code of Conduct.

1. Disciplinary measures:

Disciplinary measures are found in the Constitution of the United

Republic and also in the judicial Service Act.

a. Judges and the Justices of Appeal:

The Constitution provides for the disciplinary action against a Judge

or a Justice of Appeal when accused of “misbehaviour inconsistent

with the ethics of the office of Judge”. The Constitution defines

“Ethics of office of Judge” to mean “Ethical rules guiding the

conduct of persons holding the office of judge or magistrate”.

53
 These ethical rules have not been spelled out in the Constitution.

The disciplinary procedure for the Justices of Appeal and for the

Judges of the High Court is the same and is provided in Article

110A(1) to (6) of the Union Constitution. That Article deals with

Judges of the High Court while CAT is provided for in Articles 116 to

123. However, Article 120A refers to Article 110A for purposes of

disciplinary measures for Justices of Appeal. In this part I shall use

the title “Judge” to refer to both a judge of the High Court and a

Justice of Appeal.

b. Magistrates:

As for the members of the subordinate courts, the Constitution

merely says that their discipline is the responsibility of the Judicial

Service Commission (JSC) whose composition is as follows.

(i) The Chief, as the chairman

(ii) The Attorney General

(iii) A justice of CAT appointed by the President on the

recommendation of the CJ

(iv) The Principal Judge of the High Court and

(v) Two members appointed by the President

An MP cannot be appointed a Member of the JSC.

54
The Judicial Service Act provides for two bodies; the Judicial Service

Commission, as created under the Constitution, for the DMs and RMs,

and the judicial Service Special Commission, for the PCMs.

The Act provides for the operation of the JSC. A member of the JSC is

protected from any action or suit brought against him for an act

committed or omitted to be done in the bona fide commission of his

duties to the same extent as the protection given to a High Court Judge

in the exercise of his judicial office. The communications of the JSC are

equally privileged. It is an offence to influence or to attempt to

influence the Commission and it is also an offence to give false

information to the Commission. The Members of the Commission are

prohibited from making unauthorized disclosures of information given

to the Commission without authorization in writing by the Chairman.

However, prosecutions under the Act have to obtain the consent of the

DPP.

Section 21B of the Judicial Service Act establishes the Judicial Service

Special Commission (JSSC) whose composition is the same as that of

the JSC with the exception of the Attorney General. Under section 21C

the power from office disciplinary control, to terminate appointments

and to remove from office persons holding or acting in the office of

PCM is vested in the JSSC.

55
Section 21B of the Judicial Service Act provides also for two other

disciplinary boards a regional judicial board (RJB) for every region and

a District Judicial Board (DJB) for every District. The JSC may delegate

the exercise of any of its functions under Article 112 of the Constitution

to the RJB and DJB.

A judicial officer shall not be dismissed unless a disciplinary charge has

been made and proved on a balance of probability against such an

officer on any or all of the following grounds.

(vi) misconduct incompatible with the holding of judicial

office

(vii) gross negligence in the discharge of judicial duties

(viii) breach of the Code of Judicial Conduct (NB. This

included by an amendment in Act No. 12 of 1990)

(ix) bad reputation incompatible with the holding of judicial

office.

Such officer must be given an opportunity to answer the charge and an

inquiry has to be held in accordance with the existing regulations.

2. The Code of Conduct for Judicial Officers:

On March 15 and 16, 1984, justices of Appeal, judges of the High

Court, magistrates of all types and the then Chief Justice of Zanzibar,

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met at the Arusha where they discussed and passed the CODE OF

CONDUCT FOR JUDICIAL OFFICERS OF TANZANIA. Before this time

there was no such code and a number of problems were experienced,

to wit:

(i) Rules for the conduct of judicial officers were not readily

identifiable

(ii) It was, therefore, difficult to frame charges of Professional

misconduct.

(iii) The public was denied knowledge of what constituted

misconduct for judicial officers.

(iv) Judicial misconduct was high and this threatened confidence

in the judiciary and its independence.

The preamble to the Code set far-reaching intention and express high

hopes and expectations for the Judiciary:

Whereas an independent, strong, and respected and respectable

Judiciary is indispensable for the impartial administration of justice in a

democratic State.

And whereas a judicial Officer should therefore actively participate in

establishing, maintaining and enforcing, and himself observing, High

standars of conduct so that the integrity and respect for the

independence of the Judicial is preserved.

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And whereas the Judicial duties of a Judicial Officer, which include all

the duties of his office prescribed by law, take precedence over all his

other activities:

And whereas it is desirable that standards of conduct which Judicial

officers should observe be prescribed and published for the information

of the Judicial Officer himself and the public in general so that the

objectives set out in this preamble may be achieved:

The Code applies only to TZ mainland.

The term “judicial officer” is defined under the code to mean and

include any Judge and Magistrate of any description employed or

appointed in the Judicial Department of Tanzania.

The Code also states clearly that violation of any of the rules contained

in the Code, shall constitute judicial misconduct or misbehaviour and

may entail disciplinary action.

The Code then sets out four broad rules which a Judicial Officer should

observe any description’. It is imperative that we go over them one

after another briefly.

Rule 1:

A judicial Officer should avoid impropriety and appearance of

impropriety in all his activities.

A Judicial officer should respect and comply with the laws of the land.

He should conduct himself at all times in a manner that promotes

public confidence in the integrity and impartiality of the Judiciary. He

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should not allow his private interests or the interests of members of his

family to influence or friends to influence his decisions. e.g. by

voluntarily testifying as their character or by standing surety unless

required by law.

Rule 2: A - Adjudicative Duties.

1. To be true and faithful to the law and to acquire and maintain

professional competence.

2. To maintain order and decorum in judicial proceedings.

3. To be patient, dignified and courteous to all who come before him in

his official capacity.

4. To accord all who come before him full right to be heard according

to law. Not to discuss matters pending before him except in

consultation with other judicial officers.

5. To be punctual in court and to dispose business promptly.

6. To abstain from commenting about pending or impending

proceeding in any court in Tanzania unless he makes statements in

an official capacity or explains court process.

7. In order to maintain temperate conduct of judicial proceedings

which is essential to the fair administration of justice, a judicial

Officer should not allow photographing or televising court

proceedings. However, the following aspects are allowed:

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(a) use of electronic or photographic means for purposes of judicial

administration.

(b) Publicizing ceremonial proceedings;

(c) Photographing or other electronic recording and reproduction of

court proceedings if:

(i) the recording will not distract participants or impair the

dignity of the proceeding;

(ii) the reproduction will not be exhibited until after the

proceedings have been concluded and all direct appeals

have been exhausted.

Rule 2: B-Administrative Duties.

1. A judicial officer should diligently discharge his administrative

duties, maintain professional competence in judicial

administration and facilitate the performance of the

administrative duties of other officers and court officials.

2. A judicial officer should require his staff and other court officers

subject to him to observe the standards of fidelity and diligence

that apply to him.

3. Should initiate or take disciplinary measures for an officer of the

court who commit unprofessional or unethical conduct.

4. In his administrative duties, a judicial officer should avoid

nepotism and favouritism.

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 Rule 2: C-Disqualification.

1. A judicial officer should disqualify himself in a proceeding in

which his impartiality might reasonably be questioned, including

but not limited to the instances where:

a) He has a personal bias or prejudice concerning a party or

personal knowledge of facts in dispute;

b) He served as a lawyer in the matter in controversy, or a

lawyer with whom he previously practiced law is involved

or where such a lawyer is a material witness;

c) He knows that he personally, or member of his family has a

financial or other interest that could be affected by the

outcome the proceedings before him;

d) He or his spouse or relative is party to the proceedings, is

acting as a lawyer in the proceedings, is known by the

judicial officer to have an interest which could substantially

affect the outcome of the proceedings, is likely to be the

material witness in the proceedings.

2. A judicial officer should declare his interest in the matter in a

matter brought before where such interest exists.

Rule 3

A judicial officer may engage in activities to improve the

Law, the legal system and the Administration of Justice.

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CONTINUED WITH LECTURE USING CODE…………

NB. The Code is in English and it is therefore unfamiliar to a number

of PCMs and their assessors.

II. ETHICS FOR THE BAR:

I have not had the time to research on the ethics for the A-G

Chambers, but they are essentially the same as that for the

advocates with the necessary changes.

1. General:

The Advocates Act has provided an elaborate procedure of

enrolling advocates to minimize the possibility of enrolling

wrong persons. There is the Council of Legal Education; and

currently the Law School of Tanzania, one of whose functions

is to interview lawyers who petition for enrollment as

advocates. After satisfying the Council one has to be

interviewed by the CJ. The names and CVs of the successful

petitioners are circulated to all Judges and justices of Appeal

for comments regarding their suitability.

2. Discipline:

a. The Advocates Committee:

The Advocate Act provides for the Advocates Committee

comprising of a Judge appointed by the C.J. as the chairman, the

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A.G. or his Deputy or the DPP and a practicing advocate

nominated by the Council of the Law Society. The functions and

the powers of the Committee are to hear and determine.

 Any application by an advocate to procure the removal of his

name from the roll; or

 Any application by any person to remove the name of any

advocate from the Roll; or

 Any allegation of misconduct made against any advocate by

any person.

If the Committee finds that an application by another person to

remove an advocate from the roll or an allegation of misconduct

does not disclose a prima facie case it may dismiss it forthwith.

However, if there is a prima facie case then the advocate in

question would be called to answer the allegation. The advocate

would be given the relevant particulars. In the hearing the

committee may receive oral or documentary evidence as it

deems fit. If the Committee is satisfied that a case has been

made against the advocate, it may;

 direct that the name of the advocate be removed from the

roll; or

 admonish the advocate (i.e. to warning in writing); or

 Suspend the advocate from practicing for such period as the

Committee may direct.

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Elaborate rules of procedure, called Advocates (Disciplinary) Rules,

1955, have been put in place to guide the Advocates Committee.

Applications to the Committee are to be in prescribed forms addressed

to the Secretary. Once received applications cannot be withdrawn

without the leave of the Committee. Time scale is provided within

which documents have to be served on the relevant parties. The

hearing of all applications is in private except that an application for

removal from the Roll at the instance of the advocate himself may be

required to be advertised to give opportunity for objection by any

person. The committee may dispense with certain requirements of the

Rules and may extend the time given for doing any thing.

NOTE: Proceedings before the Committee under section 13 are

deemed by section 14 to be judicial proceedings for purposes of

Chapter XI of the Penal Code which deals with offences relating to the

administration of justice i.e. perjury, destroying evidence, contempt of

court etc.

An advocate aggrieved by the decision of the Committee may appeal

to full bench of the High Court, i.e. not less than five judges, within 30

days of the decision. The committee shall be made a party in the

appeal and shall have a right to be represented at the hearing and

oppose it. The High Court has all the powers under the Civil procedure

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Code, 1966, in relation to civil appeals from suits. Thus the High Court

can affirm, reverse or vary the decision or order appealed against. The

decision of the High Court is appealed to the Court of Appeal within 30

days of the decision.

The Advocates Act also provides that only a person who has been

enrolled under the Act and has a practicing certificate in force can

practice as an advocate. Anybody else is referred to as “unqualified

person” and is prohibited from practicing and penalties are provided

for contraventions.

The Act also provides for remuneration for advocates and towards that

end there is a remuneration Committee and there are Advocates

‘Remuneration and taxation of Costs Rules, 1991.

b. The Tanganyika Law Society (TLS):

The Advocate ordinance refers to the Law Society as the one

established under the Tanganyika Law Society Act. Among the

objects of the Society that are relevant to the present subject are:

 to maintain and improve the standards of conduct and

learning of the legal profession in the Territory;

 to facilitate the acquisition of legal knowledge by members of

the legal profession and others

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  to assist the Government and the Courts on all matters

affecting legislation, and the administration and practice of

the law in the Territory;

 to present, protect and assist members of the legal profession

in the Territory as regards conditions of practice and

otherwise;

 to protect and assist the public in the territory in all matters

touching, ancillary or incidental to the law.

All advocates with practicing certificates in force are members of the

Society “without election, admission or appointment. All legal officers

who because of their offices are deemed by the advocate Ordinance to

be advocates, can also become members upon application. There are

also honorary members.

The Society has made “Rules of Professional Conduct and Etiquette of

the Tanganyika Law Society” (hereinafter referred to as the TLS Rules).

It has 37 broad rules arranged in alphabetical order starting with

“ABSENCE” which is dealt with under absence “from Chambers” and

absence “from Courts”. The Rules end with “WITNESSES” and then a

General rule 37. An analysis of the Rules reveals that they deal with

the duty of the advocate to the client, to the Court and to a fellow

advocates and also some general provisions. This is glaringly obvious

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from rule 37 (1):

Every advocate must discharge his duties to his client, the Court,

members of the public and his fellow members of the profession with

honesty, candour and honour.

Duty to the Client:

 An advocate paramount duty is to his client to serve his interests

with his best skill and care: to preserve his confidences: and to be

diligent and be honest over his financial dealings with him.

 An advocate should not disclose the affairs of client, without his

consent, to income Tax Authorities or the police. If in doubt an

advocate is to treat the information as privileged.

 A client is entitled to copies of any document in his case file with

the advocate. At the termination of the proceedings all documents

to be returned to the client unless otherwise required for the case of

co-client. An advocate has a lien on the documents for the payment

of his fees.

 An advocate is to observe the Advocates (Accounts) Regulations,

1956, strictly in his dealings with a clients account. These rules

regulate issues on how an advocate should spend client’s money.

The Regulations make it mandatory to an advocate to keep books of

accounts, and direct that they must deposit money paid for office

purposes into client account. The Regulations also instruct that an

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 advocate shall keep his own account and the clients’ account; they

also make conditional restrictions for depositing and withdrawing

money from a clients account. The regulations however, are flexible

enough, as they allow some agreed transactions between the

advocate and his client as far as payment into or withdrawal of the

money from the clients’ account is concerned. The advocates

committee has powers to inquire and ensure the smooth

compliance of the regulations.

Duty to the Court:

 An advocate should not knowingly tell lies to the court, otherwise

this may result to disciplinary actions against him including

suspension. Advocates should be sincere and honest to the Court,

so as to avoid the bad image which the public sometimes impute on

them. As an officer of the court, an advocate has the role or duty to

assist the court to reach a just and fair decision.

 No smoking in Court even if proceedings have not started

 Bowing: Bowing simply means “bending over”. It has been a trite

custom in the legal fraternity that advocates bow before judicial

officers either in court rooms or chambers. Some extend this

tradition even to places other than the mentioned ones. According

to Rule 11, this is a privilege on the part of enrolled lawyers only,

which said privilege is not extended to their un-admitted assistants

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 or clerks. So, only an advocate is to bow to the Court and not an un-

admitted assistant or clerk. This custom is meant to show respect to

judicial officers in the legal profession, that is why in some

occasions, even junior judicial officers bow before senior judicial

officers to imply courtesy.

 An advocate has a duty to draw the attention of the court to grave

or substantial misreporting of proceedings in the press.

 An advocate is not allowed to ignore payment of court fees, he must

pay the same promptly (Rule; 20).

 Advocates are prohibited from causing witnesses to testify lies or

from acting into a case where they can be called as witnesses.

(Rule; 36). An advocate is not supposed to couch witnesses or to

call a witness whom he knows to have been couched. It is improper

for an advocate to converse with a witness from the time when he

begins to give evidence until the end except may be if the witness

is the client who requires advice in which case the advocate has to

inform the court and the opposite advocate.

 An advocate to inform the court in good time of his absence is not

sufficient has to be in writing. Information through another

advocate is not sufficient.

Duty to fellow Advocate (s):

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 An advocate should not act for a client of another advocate without

that other’s consent or unless the other advocate has withdrawn or

the client has withdrawn instructions from the other advocate. So, if

a client comes to you and ask you to represent him/her in a case

which was already before another advocate, the first thing to advise

the client is to formally withdraw instructions of that other advocate

before you accept the assignment. But an advocate is not to solicit

clients to withdraw instructions from other advocates in order for

him to be engaged in cases which had already been engaged to

other advocates.

 An advocate is required to reply to correspondences from other

advocates promptly. Failure to do so after two reminders constitute

professional misconduct.

 Upon dissolution of a partnership an advocate should not act for a

client against the ex-partner in claims arising out of the events

during the partnership.

An advocate should desist taking other professions or businesses if

they are non honourable and distracts from the status as advocate or if

they are calculated to attract business to himself unfairly. Eg. court

brokers, taxi drivers, etc.

Duty to the Profession:

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 Under Rule; 4 of the Rules, advocates are prohibited from

permitting the press to publish or advertise their professional

carrier, and their photographs in gowns cannot be published. They

cannot apply or seek instructions for professional business and they

are not allowed to do anything which may be regarded as attracting

business unfairly; However, advocates can teach, give public talks,

be interviewed, write articles in papers, edit or author a book etc. In

such cases an advocate can give his professional qualifications.

 It is objectionable for an advocate to have his/her name in heavy

blocks typed in telephone and other directories. An advocate

should only identify himself as an advocate in his chamber address

but not in his residential address.

 An advocate cannot be a member of a Chamber of Committee

except in a capacity other than that of an advocate.

 An advocate not to act as a Commissioner for Oaths for his clients.

 As a Commissioner for Oaths, an advocate should ensure that a

deponent signs an affidavit in his presence. If an affidavit is

incomplete an advocate should not administer an oath.

 A non-practicing advocate should not take work even for a friend

 An advocate to be careful in giving threats of criminal prosecutions

 An advocate should not appear as such before a court or tribunal in

a matter in which he has reason to believe that he may be required

to be a witness and if it becomes apparent in the course of a

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 hearing that he will be required to be a witness, he shall discontinue

appearing.

 A lawyer should accept as a professional obligation the duty to

participate in Legal Aid cases and to execute the case as he would

do for any other client. The Legal Aid (Criminal Proceedings) Act,

1969 according to its short title, is an Act to provide for the

rendering of free legal aid in criminal proceedings involving indigent

persons. So, usually this kind of assignment is assigned by the TLS

and it is a professional misconduct to refuse to take the assignment

only because you are not paid. But I must say, from the practical

point of view, sometimes it is difficult to handle some of the

indigents.

 Every advocate owes a duty at all times to maintain the honour and

dignity of his profession and to deal honoroubly, frankly and fairly

with all his colleagues.

 “Despite his duty fearlessly to defend his client’s interest, a

lawyer should never allow his personal feelings or those of

his client to effect his duty as an Advocate to treat the

Court, the lawyer on the other side and the witnesses with

courtesy and respect and in no circumstances should be, as

an advocate, exchange personalities with the opposing

advocate but should always address his remarks to the

Court.”

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The TLS has its own disciplinary mechanism to implement the TLS

Rules. There is an Ethics Committee which receives complaints

against advocates. There is also the national Ethics Coordinator who

makes annual reports on the disciplinary situation to the Annual

general Meeting. The TLS has chapters covering the whole country.

Serious cases of complaints which have been established are referred

to the Advocates Committee.

a. The Legal Effect of the TLS Rules:

The TLS Rules are the ones which provide ethics for the bar on the

Mainland. The Advocate Act merely provides for the disciplinary

action. However, the Rules do not have legal force as was said by

KALEGETA, J. in Mkono & Company Advocates v.J.W. Ladwa

(977) Ltd, Civil Case No. 3 of 2000(Commercial Division) at

p.20:

The obvious is that the “TLS” Rules issued by Tanganyika Law

Society are merely designed to guide the conduct of its members

[the Advocates] as exemplified by the title thereto for “professional

Conduct and Etiquette”. These however cannot be used to defeat

the force of substantive law. They have no force of law. Can we

categorize these rules as subsidiary legislation? Tanganyika Law

Society which made those rules is a creature of statute. However,

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 not every creature of statute is empowered to make subsidiary

legislation. This power should specifically be in the parent Act.

Under which law then did Tanganyika law Society act in making

those rules? I have not been able to trace any…

The learned Judge concluded that “these Rules have no force of law

and hence will not have a bearing in my decision…”. He advised the

TLS to “arrange to have the same accorded a force of law if they

have to exalt usefulness in the society’.

OTHER MACHINERIES CONTROLING THE CONDUCT OF

ADVOCATES;

Professional conduct and ethics of an advocate are not solely

governed by these RULES OF PROFESSIONAL CONDUCT AND

ETIQUETTES. There are other machineries which control and instruct

on their conduct. These machineries may be categorized as follows;

Statutory Control;

These are Acts or legislative instruments which in a way or other touch

upon the conducts of the advocates’ professions, they must thus

observe these pieces of legislation. Those mechanisms include;

a) The Advocates Act, and subsidiary legislations made under it. These

subsidiary legislations include;

• The Advocates (Admission and Practicing Certificate) Regulations.

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• The Advocates (Accounts) Regulations.

• The Advocates (Professional Requirements) Regulations.

• The Advocates (Disciplinary and Other Proceedings) Rules.

• The Advocates’ (Remuneration and Taxation of Costs) Rules

b) The Notaries Public and Commissioners for Oaths Act, this is An Act

relating to Notaries Public and Commissioners for Oaths. Indeed,

advocates are notaries public and commissioners for oaths.

c) The Legal Aid (Criminal Proceedings) Act, 1969.

d) The Tanganyika Law Society Act, this is An Act to establish the

Tanganyika Law Society and to provide for other related matters.

International Influence;

Some of the Lawyers in Tanzania have their contacts and associations

internationally. This assists them to tape other jurisdictions’ practice

so as to enhance their ethics, for example, nowadays; all advocates in

Tanzania must automatically be members of the East African Lawyers

Society. They can also be members of the Bar Association of

Commonwealth.

The practice in other jurisdictions influences the practice in Tanzania.

In America for example, there is the famous American Bar of

Association (ABA), this is a National organization of the legal

profession, founded in 1878 and it has a great influence world wide.

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