My Lord, the Chief Justice

Ladies and Lord Justices of the Court of Appeal

Ladies and Lords Justices of the High Court

Honourable Registrars and Magistrates

The Honourable Attorney General

The Director of Public Prosecution

My learned friends

Ladies and Gentlemen

 

I wish you a good morning.

I would like to commence today by welcoming the newly admitted advocates to our profession: Advocacy, the profession of pleading other people’s causes.  I always say that advocates are a special kind of people for we spend our lives fighting for those who cannot fight for themselves.   16 years ago, I filed an intervener application in a case in which Advocate Kalunga, now deceased, was representing another party.  When my intervener application came for hearing, Mr. Kalunga stood up and said “My Lord, my learned friend Ms. Karume and her clients are just busy bodies wanting to interfere in business that does not concern them.  They should not be allowed to intervene”. He then proceeded to make submissions.  I have never forgotten this because as I looked at Mr. Kalunga, calling me a busy body, I laughed and thought to myself, I am not the only busy body here.  It appeared to me that as advocates we are all busy bodies.  We spend our lives minding other people’s businesses by valiantly fighting for their causes.  We are privy to information relating to our clients’ private lives that even a doctor or priest may not be aware of and like doctors and priests, we are required by law to keep this information confidential.

 

So, remember, we might be busy bodies, but “confidence” is a fundamental tool of our trade, so fundamental that section 134 of the Evidence Act, prohibits us from disclosing communication made to us by a client in the course and for the purpose of our employment as an advocate.  There are exceptions to this prohibition but these are limited and I will let you research them yourselves.

I would like to take this opportunity today to discuss briefly, 4 issues touching upon your new careers:

  1. The History of our Profession
  2. Our Society, the Tanganyika Law Society
  3. Ethics in our Profession
  4. The Role of Advocates in administration of justice.

History of the Profession

Advocacy is one of the most ancient and most honourable of all callings.   It goes as far back as Ancient Greece when advocates prepared what we would today call submissions for their clients and the clients would then read these submissions during the trial or in the case of illiterate clients, they would learn the speech and recite it from memory.  Advocates in Ancient Greek did not have a right of audience but assisted claimants or defendants by preparing their briefs and they could not seek a fee but received an honorarium for their services.  Admittedly there are cases in which the honorariums amounted to large sums, particularly when assisting wealthy individuals.

During the Roman Republic, it was the prerogative of the patricians, the wealthy elite of Rome, to assist and protect their dependants and others who sought their services.  As a result, patricians frequently appeared in the Roman courts to defend clients and so developed the patronus causarum, among the most famous being Marcus Tullius Cicero and also Julius Caesar himself.  The patronus causarum was held in very high esteem and did not seek a fee for his services but would as with advocates in ancient Greece, accept an honorarium.

Our profession is descended directly from the Common Law profession of the Barrister which formed in England during the 14th Century and eventually developed into associations known as Inns of Court which are four in number: Lincoln’s Inn, the Middle Temple (the inn where I was called to the Bar), the Inner Temple and Gray’s Inn.  The inns served as a place for learning the profession, organisation for protecting members of the profession and as the profession grew the inns’ influence and wealth expanded.  In “A Philadelphia Lawyer in the London Courts” Thomas Leaming explains the inns systems in the following terms:

“The Inns of Court began their existence about 1400, nearly contemporaneously with the Trade Guilds, and both, doubtless, took their rise from the instinct of men engaged in a common occupation to combine for mutual protections…… In time these loose aggregations developed into strong and elaborate organizations which acquired extensive real property, now of enormous value, and have long wielded a powerful influence”.

Our Society

The Tanganyika Law Society of which you are all members serves the same purpose as the English Inns of Court.  It is an association in which we all combine for the purpose of first and foremost protecting our professional interests; furthering our profession by continuing to acquire and share legal knowledge; protecting the general public and given the influence we necessarily yield, we have a duty to advise both the Judiciary and the Government of the day, on matters relating to administration of justice in this country, irrespective of the party in power.

As of 30 October 2018, the TLS has a total of 5,055 members who have paid their subscription fees.  184 of these have 21 years and above of practice; 416 have 11 to 20 years of practice; 1,112 have 6 to 10 years of practice, 2,415 have 1 to 5 years of practice, 837 are newly admitted and 91 are non-practicing members.  I am pleased to tell you today that you are entering a profession that is overwhelmingly young.  There are pros and cons of this fact.  The cons is that there are very few members of the society who have more than 11 years’ experience in the profession and therefore, there are not enough experienced people to share their wealth of knowledge with you.  However, the pros is that our society is young; it is vibrant; it is growing and new life is being injected into it every day.

As the President of your Society, I have a duty to explain to you that your Society is an independent body corporate with perpetual succession whose affairs are managed by the Governing Council appointed by the members through a democratic voting processing.  The subscription fees you pay to the TLS are used to run our society so that we remain independent from external influence of any kind.  When you make these yearly payments remember you are doing so, in order to ensure that your Society remains self-funded and financially independent.

Ethics

I must admit that it has been some time, over 12 years I believe, since I attended the Admissions Ceremony. The reason for my self-imposed exile from these admissions ceremonies was that I became exceedingly fatigued with this joyous occasion being used by many speakers to paint a black picture of our profession, with unfounded allegations about a profession which I love.  So today as the President of the Tanganyika Law Society it gives me great pleasure to make amends because I want you to enter this profession with pride which can only come from the confidence that you are entering an honourable profession in which the vast majority of its practitioners conduct themselves ethically.

Unfortunately, there is an ill-founded perception that Advocates lack ethics.  I have used the term ill-founded deliberately, for reasons that will become obvious to you as I speak.

At the commencement of my Presidency of the TLS, I attended Parliament in Dodoma for the reading of the Budget Speech of the Ministry of Justice and Constitutional Affairs.  I was approached by several Members of Parliament complaining about the deterioration of ethics within the legal profession.  Ethics within our profession was also a matter that was highlighted in the Minister’s Speech.  I noted that as I asked MPs for specific examples of unethical conduct, the responses I received were invariably words to the effect “Ahh kila mtu analalamika…” or “Unajua …. watu wanasema” or “Nimesikia mimi watu wakilalamika”.  So, I took it upon myself to investigate this alleged deterioration of ethics within the legal profession forensically by reviewing the report of the TLS’s representative of the Advocates’ Committee and the Report of the Ethics Committee of the TLS.

I want to inform you as new advocates that when the Special Session of the Advocates Committee commenced on June 25, 2018, there were 27 Applications against advocates pending before the Advocates’ Committee.

  • 5 were dismissed by the Advocates’ Committee (18.5%)
  • 6 were withdrawn by the Complainants (22.2%)
  • 1 was rejected by the Advocates’ Committee (4%)

A total of 44%, almost half of the 27 complaints filed against Advocates did not proceed to hearing.  By September this year, the Advocates’ Committee had 15 pending Applications against Advocates.  Allow me to put these figures into their proper perspective.  If I minus the newly admitted and the non-practicing advocates, we had 4,127 members of the Bar when the complaints were filed.  This means that less than 0.4% of advocates have complaints pending before the Advocates’ Committee.  This year there were 59 complaints filed with the Ethics committee of the TLS, that is to say only 1.4% of all practicing advocates have had complaints lodged against them by their clients at the Ethics Committee of the TLS, this year.  Frankly speaking the statistics we have as a society do not in the least support the constant allegations being made against our profession.  So let me put it another way, as I speak to you today 99.6% of all advocates have no complaints pending before the Advocates’ Committee and I want you to start the profession fully aware that you are entering a profession whose clients have had no cause to lodge complaints against 99.6% of the practitioners.  I ask you to be among amongst the many.

The role of an advocate

A few weeks ago, I attended the funeral of Advocate Martin Matunda.  It is at Martin’s funeral that I revisited my thoughts on the role that we play as advocates in the society at large.  Martin’s death was particularly poignant for me because we were born the same year and we were called to the Bar of Tanzania Mainland on the same date.  Like me had been a practicing advocate of the High Court of Tanzania for 18 years.  At his funeral the church was full.  There were more people outside than those inside the church and as I sat watching people file past to pay their last respect, I was astounded by the variety of people who had come to say goodbye to Martin.  There were rich, there were poor, there were learned, there were not so learned, there were people of all colour and religion, there were people from different walks of life including professional footballers and a judge.  As I watched, it dawned on me that in 18 years of practice, Martin had given of himself and in so doing he had touched a lot of lives in a positive way.

As I listened to the sermon, I understood our role more clearly than I had ever understood it before and I want to share with you today a piece of that sermon in the hope that it will uplift you as it did me and it will assist you to understand why our profession is described as a calling and not just a job.

King Solomon, who is considered a prophet by all the Abrahamic Faiths (Judaism, Christianity and Islam) when asked by God what he wished for most in his life, did not ask for wealth or power but for wisdom or what is known in Kiswahili HEKIMA and his wisdom brought about justice to his people which brought great wealth and as a result he was much loved and respected.

During the sermon, the priest taught me that the word hekima stems from 2 Arabic consonants “h” and “Qaf” and one vowel “fat-ha”. Together these spell the word “HAQ” or in Kiswahili HAKI.  From these 2 consonants, we have HAKI, HEKIMA, HAKIMU, HUKUMU. Kwa sababu ya HEKIMA yake, King Soloman alikua HAKIMU wa kobobea na HUKUMU zake zilikua za HAKI.   And that is the import of the story of King Solomon who lived 3000 years ago, and who reigned for 39 years between 970 and 931 BC and yet is still remembered today.  You will all know of judges whose wisdom remain imprinted in our jurisprudence.  But the honour of impacting people’s lives positively is not only that of the judge.  Martin Matunda’s funeral taught me that advocates too have a special place in our community.

Humans have a deep-rooted need for justice and throughout civilisation mankind has created systems in the hope of attaining justice for all, whether rich or poor, educated or illiterate.  King Solomon epitomises JUSTICE.  He was Wise and therefore Just.  King Solomon personifies the inextricable link between HEKIMA (Wisdom) and HAKI (Justice).

In the system we have adopted in this country, an advocate plays an invaluable role in the administration of justice.  Please start your career being fully aware that you are a precious cog in the machinery we know as administration of justice and that without wisdom, there is no justice.    Please remember that your job is to assist the Courts to arrive at a just decision and not to make a mockery of the justice system by abusing it in order to achieve a result that may be praised by your client but which no sane person will recognise as just and fair.  Here is where I would like to remind you that procedural rules were drafted to create a level playing field between opponents, without which there can be no justice.  That is the HEKIMA or the WISDOM which forms the foundations of procedural rules.  Unfortunately, we frequently forget this fact and we use procedural rules to create an unfair battle ground, in which the cards are stacked up against the most vulnerable majority who cannot afford an advocate.

As you start your careers, which I hope will be lengthy and fulfilling, I ask you to always bear in mind that HAKI inahitaji HEKIMA and not cunning, connivance, manipulation.

If there is but one thing that you should remember from my speech today, it is HEKIMA or WISDOM.  I want you to remember to conduct yourselves with HEKIMA, for history is very kind to those who are wise.

Fatma Amani Karume

President of the Tanganyika Law Society

At Dar es Salaam

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