Speech
by President Benjamin William Mkapa at a Dinner Hosted in
his Honour by the Tanganyika Law Society, Sheraton Hotel,
Dar Es Salaam, 10th January, 1997
The President
of the Tanganyika Law Society,
Mr. Mohamed Ismail,
Honourable Chief Justice,
Honourable Minister for Justice and Constitutional Affairs,
Honourable Judges of the Court of Appeal,
Honourable Judges of the High Court of Tanzania,
Honourable Attorney General,
Council and Members of the Tanganyika Law Society,
Distinguished Guests,
Ladies and Gentlemen.
I am a politician,
not a lawyer. You can, therefore, be sure I will speak for
more than ten minutes, without charging a fee, and without
having to apologise for it!!
Mr. President,
I wish, at the outset, to thank the Tanganyika Law Society
for the honour of this invitation to dinner. It has been a
very good dinner and I have enjoyed every minute of it. I
also wish to thank you Mr. Ismail, President of the Tanganyika
Law Society, for the very good welcoming address you have
just delivered, without charging a fee!
When I received
and accepted your invitation I believed, quite naively as
a matter of fact, that I was being invited to be wined and
dined for free. I, of course, found out soon enough that I
had to pay for the dinner by addressing this gathering of
some of the best legal minds in the land! That realisation
at first
filled me with awe. People learned and steeped in the Law
like yourselves are reknown for their oratory skills, for
their wit and their humour. "How will I measure up?",
I thought. So I decided that I should begin by lightening
up the mood with an irreverent description of the performance
of Judges and Advocates in court.
There is a common
belief that Judges are rather dry, unemotional men and women,
who live apart in their own world steeped in accounts of torts
and malfeasances, and who really have little idea of every-day
life as the rest of us know it. It would indeed seem that
some Judges, by their demeanour, deliberately foster this
portrait. For hours they sit in silence, apparently unmoved
by either the eloquence of the advocates or the pathos and
drama of the evidence of witnesses. Eventually, you begin
to wonder if they are really alive! Then, when you have almost
given up hope, the Judge leans forward and, with a slightly
puzzled frown, asks some such question as: "Who is Kanda
Bongoman!"
This almost studied
apparent simple mindedness contrasts sharply with the flamboyant
omniscience of the advocates. They know everything about everything.
One day an advocate is speaking with all the authority of
an economist; the next day he is arguing equally impressively
on the proper way to carry out an appendectomy; and yet another
day on how to run an election!
Today I have
the hard luck to have both Judges and Advocates as my audience.
How do I do justice to both - those who prohibit people from
laughing in court, and those who seem intent on making everyone
laugh by making fools out of witnesses? Luckily, all of you
- Judges, Magistrates, Advocates - have a common interest
with me: The proper administration of justice in our country.
We cannot all
be versed in law or practice law. But we must all subscribe
to the pivotal role of law in society and the supreme need
to have it administered fairly and judiciously. Richard Hooker,
the English theologian who was nick-named "Judicious
Hooker" for his careful choice of words could not have
put it better when he said:
"Of Law there
can be nothing less acknowledged, than that her seat is the
bosom of God, her voice the harmony of the world: all things
in heaven and earth do her homage, the very least as feeling
her care, and the greatest as not exempted from her power."
Today, I join
you in paying homage to the Law, in the profound hope that
between us we can ensure that the very least in our land feel
themselves the concern and patronage of the Law, and the greatest
among us feel the full ambit of its power.
Mr. President,
Although the Tanganyika Law Society consists largely of individual
Lawyers, in their private capacity, both the Society and its
members have been vested with an important public duty - a
duty that derives from "the bosom of God", and the
pursuit of which brings "harmony in the world".
It is not an
accident, therefore, that the Tanganyika Law Society is among
the few, if not the only Society, established by statute,
namely the Tanganyika Law Society Ordinance. The Ordinance
provides that the objectives of the Society include, "to
assist the Government and the courts in all matters affecting
legislation and the administration and practice of the Law".
On legislation,
I am glad to learn that you have actively participated in
preparing the proposed Land Law Bill, the Court Brokers Rules,
and the Advocates Remuneration Rules. I
welcome you to do much more for instance in reinforcing the
work of the Law Reform Commission by advising on the state
of the existing laws and the problems encountered in administering
them. Your Society should also scrutinise and advise the Government
on the Bills it proposes to table in the National Assembly.
As regards your
other responsibility to "assist the Government in the
administration and practice of the law", I wish to commend
and to thank the Tanganyika Law Society, and its individual
members, for the work you have done, and continue to do, particularly
in accepting positions of Acting Judges and discharging responsibilities
as Members of Boards of Directors as well as various Commissions
of Inquiry. The Government greatly appreciates the willingness
of the members of your Society to give up their time, and
to forgo opportunities of gain, in order to render such services
to the public.
Mr. President,
The legal profession in Tanzania is a crucial ingredient of
our system of administering justice. You as lawyers are privileged
to know the law and have a critical role to assist in its
fair administration. Whatever imperfections that may exist
in our country's machinery of justice, the scope for its improvement
as well as its viability substantially depends on the legal
profession's commitment to the cause of justice and its will
and vigour to fight for such a cause.
Mr. President,
I am aware of the problems which beset the legal profession
in Tanzania including lack of a formal post-graduate vocational
training for lawyers, lack of statutes, law books, journals
and law reports, to mention only a few. All these are a mirror
image of the problems that afflict the country's legal sector.
As you will recall, Government appointed a Legal Task
Force, under the Chairmanship of former Attorney-General,
Mr. Mark Bomani, to undertake an in-depth analysis of the
legal sector in Tanzania, with a view to identifying the sector's
problems and device a strategy to improve its performance.
Their Report has now been presented to Government and its
wide-ranging recommendations are under active consideration.
I can assure you that the recommendations will not be tucked
away in an omnibus file to be put away. They will be implemented
in phases as funding becomes available.
At this stage
I want to express my sincere gratitude to the donors without
whose financial assistance the work of the Legal Task Force
could not have been accomplished. Now that a strategy is in
place for the development of Tanzania's legal sector, let
me also request for the donors' continued support in the implementation
of the recommendations of the Legal Task Force.
Mr. President,
Besides the recommendations of the Legal Task Force, we have
recently received recommendations of the Warioba Commission
on Corruption, and the recommendations of the Judges and Magistrates
Seminar of 16-17 December 1996, on how to contribute to the
betterment of the professional image and performance of the
legal sector.
From all these
different recommendations the need clearly emerges to do something
to improve legal training, including legal apprenticeship,
that will impart on new lawyers and magistrates the sense
of mission and professional ethics required and expected of
them. Likewise, there is an obvious need for a better system
of appointing and promoting Magistrates and Judges, as well
as the need to ensure timely and unimpeded pursuit and delivery
of Justice.
Mr. President,
The Constitution empowers me to appoint Judges but once I
have done so my hands are tied even when it becomes common
knowledge that a particular judge is unworthy of the high
office he/she holds. One surely tries hard, with the advice
of the Chief Justice, to pick qualified and upright men and
women for the Bench. But we are not infallible, and the chance
of an erroneous decision cannot be ruled out. Behaviour can
also change over time. It is true security of tenure for Judges
is a very important cornerstone of the independence of the
judiciary, but if taken to the extreme it can be a licence
and apologetics for contrived injustice!!
Do we really
have to correct such a mistake through the lengthy and tortuous
path of assembling a panel of Commonwealth judges? Members
of the Commonwealth are at very different levels of constitutional
and legal development. The law is also being applied in very
different circumstances. I do not wish in any way to subject
our Judges or Magistrates to any reason to fear the Executive,
but I challenge you to reflect upon an alternative and expeditious
way of taking disciplinary action against unworthy magistrates
and judges without threatening the independence of the judiciary.
While on the
subject, I should also point out that I will be the last one
to undermine the independence of the judiciary, either through
appointments or through undermining court decisions. It must
be realised, however, that as President I am politically accountable
directly to the entire People of Tanzania for the proper administration
of justice. If the people feel there is no justice to be derived
from existing structures, what am I to do? Do I just keep
quiet for fear of being accused of Executive interference
in the Judiciary?
I know the case
of the trucks belonging to the Hai District Council has been
quite a celebrated one in your circles as proof of an Administration
that does not know, or respect, the independence of the judiciary.
I know and respect the independence of the judiciary. But
I also have a concept of justice that says it is neither fair
nor reasonable for the interests of an entire community to
be sacrificed and subordinated at the altar of manipulated
individual interests. I should have thought that the Hai case
would be considered not as signifying interference in the
judiciary but as a challenge to find out what my decision
was in response to. Judgements need to be fair and reasonable
if they are to be accepted by the society in which they are
being made. Only then will the judicial system and due process
nurture Public Trust and Confidence.
If there is one
central theme that will run through my term as President it
is a manifest commitment to the rule of law, good governance
and development. Government must operate in accordance with
our laws. Individuals and groups in society should be able
to seek the protection of the law when they believe action
in the exercise of a public duty is unconstitutional, unlawful,
unfair or down-right arbitrary.
However, what
is sometimes forgotten is the close link that exists between
the protection of the rights of the individual and the responsibility
of the Government in the promotion and maintenance of good
government. The two matters must be seen as two sides of the
same coin. Only then can our legal system contribute to social
and political harmony as well as facilitate the process of
economic and social development.
Mr. President,
It is an undeniable fact that we still have to perfect our
legal system and promote its use by the vast majority of our
people. In a country such as ours, where access to legal services
is severely handicapped by an acute shortage of lawyers and
limited financial resources for the vast majority of Tanzanians,
the establishment of a comprehensive scheme of legal aid is
critical to the successful administration of justice. It is
only when our people have access and confidence in the legal
system that their participation in the affairs of their Government
can be enhanced.
By virtue of
their training, members of the legal profession are perceived
by the public as people who are learned in the law and as
such you are at a vantage point of being able to initiate
and manage change in the area of administration of justice.
In this regard, a duty is reposed in you for promoting basic
public legal literacy among your fellow citizens so as to
enable them to make use of their constitutional rights, and
seek legal redress when necessary.
Nevertheless,
the legal profession cannot be a true agent of change unless
it identifies itself with the problems of the people, and
is willing to impart its knowledge to the community of which
it is an integral part. It is only then that the legal profession
can win the trust and confidence of the very people that the
law is intended to serve and protect. In this connection,
I would like to pay special tribute to the Tanganyika Law
Society, which under its Public Legal Literacy Project, has
been involved in the provision of basic public legal literacy
as well as the provision of free legal defence and free legal
services to the needy.
In the same vein,
I would also like to recognise a segment of your membership
which under the umbrella of the Tanzania Women Lawyers' Association
(TAWLA) is actively involved in the articulation of gender
issues and dissemination of legal information, particularly
in areas of the law that affect women and children. Only two
days ago I spent one full hour with a delegation composed
of the leadership of TAWLA. I can see some of them here tonight.
They made a strong and persuasive case for the improvement
of the legal framework for the protection of the rights of
women and children in Tanzania. I commend them, and I thank
you for what you are doing for them. You all have my support
and encouragement.
However, you
should not be complacent with the modest scores you have registered
thus far. Work still remains to be done, particularly in the
light of the expanding legal sector. As the Government prepares
itself, in collaboration with interested donors, to launch
a comprehensive legal aid scheme, I urge and ask you to broaden
your scope of assistance so as to reach the bulk of the population,
particularly those in the rural areas who have little or no
access to legal assistance. Vulnerable groups such as women
and children need special attention. By providing to such
groups public legal literacy, free legal defence or legal
services at affordable fees, your Society will be promoting
good governance, the rule of law, democracy and human rights
in Tanzania.
Mr. President,
I know it is not possible to guarantee free legal aid to all
the people who may need it all the time. I am sure many people
would willingly pay for legal counsel if it were not too expensive.
But the public perception is that the cost of legal counsel
in Tanzania is prohibitive. Costly justice can translate into
a denial of justice. We should not evolve a system where money
is the key to legal redress in courts of law.
Jonathan Swift,
the well-known author of Gulliver's Travels, once wrote an
essay in which he said:
"Laws are
like cobwebs, which may catch small flies, but let wasps and
hornets break through".
A combination
of exorbitant legal fees, widespread ignorance of the law
and of procedures for seeking justice and redress, and corruption
will result in our laws, however good, being like those described
by Mr. Swift. They will serve only the interests of the wealthy.
That is not justice.
Mr. President,
The legal profession exists for the benefit of its members,
for the benefit of the people it serves, and for the proper
administration of justice. As I have pointed out earlier,
the role of an advocate is crucial in the administration of
justice. But advocacy is also a skill which can be abused.
That is why you must all guard jealously the good name and
image of your profession; you must feel indebted to it. Fortunately,
the profession has its own ethics and standards of integrity
which bind its members. As such, the professional responsibility
of a lawyer derives from his or her membership in a profession
which is self-regulatory and which has a duty of protecting
the public it serves from the sharp practitioner among its
members.
The public image
of your profession can only be enhanced through strict observance
of these professional standards and ethics. While the Government
is committed to fostering a free and independent legal profession
in the country, that commitment would be misplaced unless
remedial measures are taken to polish and spruce up the image
of your profession. Complaints against advocates by members
of the public abound. Public perception is growing that most
professional bodies are not tough enough when it comes to
dealing with errant members. They think you protect each other.
MNALINDANA.
Mr. President,
The errant members who are a minority should not be permitted
to tarnish the image of the majority of your members whom
I am sure are equally sick and tired of being frequently
lumped together with the bad fish. I urge your Governing Council
and the Advocates' Committee to be on the alert. Complaints
against Advocates should be taken seriously and those found
in breach of professional ethics and standards should be dealt
with promptly. Wide publicity should be given to disciplinary
measures taken against erring lawyers. It is only when you
embark on a serious in-house image cleaning campaign that
your Society can hope to wipe-off the present negative perception
and thus guarantee continued respect for the profession from
the public you serve.
Mr. President,
Inspite of the good work being done by your society and its
members, I believe you will all agree with me that all is
not well in the administration of justice. There are complaints
on delays in disposing of court cases, both civil and criminal,
allegations of rampant corruption in the administration of
justice and complaints of malpractice or abuse of procedures
in order to delay or defeat the ends of justice.
Your Society
and its individual members are part and parcel of our system
of justice and necessary cogs in the machinery of administering
justice. Any impediment to justice is an impediment to a system
of which you are all a part. It affects not only the reputation
of your practice but also the interests of your clients who
are members of the public. For this reason your Society and
its members should show concern, and give serious attention
to the problems existing in our system of justice and the
complaints and allegations being made against it. I, therefore,
expect you individually and collectively as the Society, to
be in the forefront to fight injustice, corruption and malpractice
in the administration of justice.
Mr. President,
The Englishman of Letters, Samuel Johnson, is quoted to
have described the functions of a lawyer in the following
curt terms:
"A lawyer
has no business with the justice or injustice of the cause
which he undertakes, unless his client asks his opinion, and
then he is bound to give it honestly. The justice or injustice
of the cause is to be decided by the judge".
So much for the
division of labour. What bothers me is when this division
abets the entrenchment of corruption in our system of justice,
where advocates are accused of facilitating the corruption
of justice. The Report of the Warioba Commission echoes the
feeling of the people that the erosion of professional ethics
among Magistrates, Judges, Advocates and in the Legal Profession
as a whole is one of the major causes of corruption in the
rest of the society.
The report further
says that some advocates undermine even their own clients
by being bribed by the opposite side. Some advocates are said
to offer their services to both sides in a case simultaneously
without the knowledge of each side, and collect fees from
both sides. I call on the Tanganyika Law Society, as the Bar
Association for Tanzania, to address these serious allegations
and help put an end to this alarming erosion of professional
ethics that not only fuels corruption, but can sabotage our
war on corruption on other fronts.
In my recent
speech at the Seminar for Judges and Magistrates, I asked
them to look into complaints levelled against the use of prerogative
orders, and court injunctions in particular. I do the same
to you today. Can anyone tell me with a straight face if the
applications for these orders are always made in order to
serve the cause of justice?
Mr. President,
As you are well aware, the Warioba Report is now a public
document. I urge you to read it and to give your views or
comments on its recommendations especially in so far as it
pertains to the administration of justice, and in combating
corruption. I have always stated that we will wage war on
corruption strictly within the law. Obviously, I can only
succeed to meet the peoples' aspiration for a clean Government
if you in the legal profession are among the fighting ranks.
Mr. President,
A lot of people are now aspiring to be lawyers, I hope not
only for the sake of the hefty retainer and other fees, but
for the love of justice and the rule of law. My plea to them,
and to you all, is to aspire to be the best in legal knowledge,
and in upholding your professional ethics. Daniel Webster,
the American statesman and orator, was once advised not to
become a lawyer as the profession was overcrowded. Having
given the matter sufficient thought he replied: "There
is always room at the top!" And having reached the top
he was later to state - "The Law: It has honoured us,
may we honour it".
I pray that you
all aspire to be at the top on legal knowledge, skills and
professional integrity, and thereby truly honour this noble
profession.
Mr. President,
The key to good public speaking is to know when to stop. The
story is told of the long-winded attorney who was arguing
a technical case before one of the judges of the superior
court in a western state of the United States of America.
He had rambled on in such a desultory way that it became very
difficult to follow his line of thought, and the judge had
just yawned very suggestively.
With just a trace
of sarcasm in his voice, the tiresome attorney ventured to
observe: "I sincerely trust that I am not unduly trespassing
on the time of this court."
"My friend,"
returned his honour, "there is a considerable difference
between trespassing on time and encroaching upon eternity!"
I think I have just stopped short of encroaching on eternity.
I thank you once again for this wonderful dinner, and I wish
you all a happy and prosperous new year. For you Mr. President
and our other Muslim brothers I wish you all a prayerful and
edifying Holy Month of Ramadhan.
Thank you.
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