African lawyers protest as colleagues targeted by police, judiciary

20 March 2020 · Carmel Rickard

International lawyers’ organisations have reacted with shock to news that colleagues in four African countries have been targeted by the judiciary, the police or other state officials, in a way that has stopped them carrying out their work - all without a proper opportunity to be heard.

At least four African countries have become the focus of serious concern by the legal profession because of the way the judiciary, the police or other officials in those countries have been involved in harassment of senior practitioners, without allowing for the proper processes of the law.

In a statement issued yesterday, the Commonwealth Lawyers Association expressed its concern about Fatma Karume, a senior Tanzanian advocate. She was ‘indefinitely suspended from practicing law’ in mainland Tanzania by the High Court. This action followed allegations of misconduct against her for the submissions she made in case involving constitutional issues.

The CLA quoted the UN Principles on the Role of Lawyers and in particular those clauses that say government should ensure that lawyers were able to perform all their professional functions without intimidation, hindrance or improper interference. Nor should they be threatened with any sanction for their professional work.

Since these basic principles made clear that no-one’s rights should be taken away without due process, the CLA urged that Karume’s suspension be immediately lifted pending the hearing of a case against her involving allegations of professional misconduct due before the Advocates’ Disciplinary Committee. The CLA also expressed concern that Karume's suspension had come into operation without a hearing first having taken place. The organisation further urged that the disciplinary committee deal with Karume’s matter ‘promptly and with due process and respect for the rule of law.’

A similar joint statement was issued during the week by six international lawyers' organisations, including the SADC Lawyers Association, the Bar Human Rights Committee of England and Wales, and the International Bar Association's Human Rights Institute among others. They said, 'We are gravely concerned that the suspension of a lawyer without notice, and the failure to ensure an expeditious and fair hearing in the matter are violations of regional and international law standards and undermine the safeguards meant to ensure the independence of the legal profession and, ultimately, the rule of law in Tanzania.'

The statement said that Karume’s suspension followed allegations of misconduct related to her written submissions in a constitutional challenge to the President’s appointment of Professor Adelardus Kilangi as the Attorney General of Tanzania.

'We further understand that the decision to suspend Ms Karume was handed down by Justice E. M. Feleshi as part of the High Court’s ruling in the constitutional matter. According to the court’s ruling, the State’s counsel complained that the language used by Ms Karume in her submissions was unprofessional and disrespectful of the Solicitor General and the Honorable Attorney General.

'We are deeply concerned that, while the High Court acknowledged that the complaint made against Ms Karume was made in the State’s rejoinder submissions and as such she was not afforded an opportunity to respond on record, the court nonetheless proceeded to immediately suspend Ms Karume. Further to this, the suspension was made despite an acknowledgement by the court that it was “unjustified to adjudicate the complainant,” explaining that, in its view, Ms Karume’s response to the complaint should instead be dealt with by a “proper and unfettered forum.”

'While the court proceeded to refer the matter to the Advocates’ Disciplinary Committee for determination, the decision to immediately suspend Ms Karume, in our view, inadvertently amounted to a penalty. As of the date of this statement, the Advocate’s Disciplinary Committee has failed to expeditiously convene to hear the matter. We are advised that on December 5, 2019, Ms Karume’s hearing was postponed indefinitely after the three-member disciplinary panel failed to sit due to the non-attendance of a representative from the Office of the Director of Public Prosecutions. Meanwhile, Ms Karume is unable to practice law, potentially prejudicing her clients and affecting her ability to earn a livelihood. In essence, the court’s actions and her continued suspension infringes on Ms Karume’s rights and obligations without affording her the fundamental right to be heard, as recognized under regional and international standards.'

Earlier in the week similar concerns were expressed about the fate of a senior Zamibian lawyer, John Sangwa.

The background to this story, strangely similar to that of Karume, appears to be that Sangwa made comments about the courts to which one or more members of the judiciary took exception. Those judges reported Sangwa to his professional body saying he did not act according to the standards expected of an officer of the court.

Like Karume, Sangwa has now been barred from appearing before any Zambian court unless as an accused. The ban was announced by the acting chief registrar who said it was issued by 'the judiciary'. Sangwa is also under threat of contempt of court action. The ban is due to last until the Law Association of Zambia hears and decides the complaint against Sangwa by whomever emerges as the official complainant.

Sangwa has been involved in a number of controversial and high-profile matters, most recently commenting critically on the courts' decision to allow President Edgar Lungu to stand as presidential candidate in 2021.

SADC-LA said that Sangwa had to be given an opportunity to state his side of the case to an open and impartial court. 'Failure to do this, leaves an inescapable impression of victimization and possible abuse of authority.'

'To bar Mr Sangwa from employing his trade under the circumstances, is drastic. It can only have the effects of intimidating and instilling fear, not only in him, but the entire legal profession in Zambia. This will keep lawyers from exercising their responsibility independently, without fear and favour. Under the circumstances, we note and support the step that the Judiciary has taken in reporting the matter to the Law Society for investigation. We nevertheless feel strongly that the matter must not be prejudged and Mr Sangwa must be allowed to practice his trade and to discharge his responsibilities independently, without fear, favour or prejudice. Even more, in view of the fact that the Court itself is a complainant in this matter, it cannot take a decision that is akin to punishment, whilst the complaint is still under investigation.'

Sangwa's 'banning' has also been criticised by the CLA and other commentators from within Zambia.

Over the last few weeks there have also been strong concerns about Angolan lawyer Eugenio Marcolino, with SADC-LA saying that he had been arrested while in court, where he was opposing 'through legal process, a determination of the police commander that Advocate Marcolino believed to be illegal.' The lawyer was subsequent tortured by police, and then charged, said the lawyers' association.

In a fourth example, lawyers involved in a high profile corruption case being heard in Namibia have also been harrassed by the authorities. Two advocates from South Africa were arrested for appearing in court without a work permit, while a third, Tembeka Ngcukaitobi, was served with a summons from the anti-corruption commission, during a court sitting, demanding that he explain a payment he had received from Namibia's national fishing corporation in 2018, and given just an hour to answer.

The Namibia's government subsequently apologised and said the funds were paid to the lawyer to attend a conference after he had been invited as a speaker.

In the case of Ngcukaitobi, SADC-LA said lawyers should be allowed to carry out their work 'without fear of intimidation and threats'.

Carmel Rickard

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