July 28, 2020 JOINT REPORT

Warning Shots: Threats to the Independence of the Legal Profession in Tanzania

This April 2018 report found that the threats to the legal profession in Tanzania reflect an alarmingly crackdown on the rule of law, democracy, and human rights.

EXECUTIVE SUMMARY

In October 2017,  six organisations – the American Bar Association Center for Human Rights (ABA CHR), International Bar Association’s Human Rights Institute (IBAHRI), International Commission of Jurists (ICJ), East Africa Law Society (EALS), Pan African Lawyers Union (PALU) and Southern Africa Development Community (SADC) Lawyers Association (SADCLA) – undertook a joint fact- finding mission to the United Republic of Tanzania (Tanzania). The purpose of the mission was to assess the state of the independence of the legal profession in Tanzania, particularly the existence and functioning of an independent, self-governing association, the ability of lawyers to carry out their professional duties without retaliation, harassment or intimidation or being associated with their client’s causes, and the rights of lawyers in Tanzania to engage in matters of public interest.

The mission was precipitated by several concerning events in 2017, including proposed amendments to the regulation of the legal profession in Tanzania, public officials’ threats to abolish the Tanganyika Law Society (TLS), and verbal and physical attacks against members of the legal profession, most notably the bombing of IMMMA Advocates’ offices and a shocking assassination attempt on then-President of the TLS, Mr Tundu Lissu, which raised extremely grave concerns not only regarding the independence of the legal profession, but Tanzania’s respect for the core principles of democracy and the rule of law.

In June 2017, the government of Tanzania circulated a consultation paper (the ‘Matrix’) to various organisations and departments listing 15 areas related to the legal profession that it had identified for ‘reform’. One of the government’s central proposals was the introduction of a new ‘Regulatory Board for Lawyers’, which would exercise many of the oversight and disciplinary functions presently reserved for the bar and the judiciary. Although not absolutely clear from the Matrix itself, which is silent on the composition of the Board, it was the understanding of many individuals interviewed during the mission that, under this new structure, the regulation of the legal profession would be under the authority of the Minister of Constitutional and Legal Affairs.

The introduction of the Matrix followed earlier remarks by then-Minister of Constitutional and Legal Affairs, Dr Harrison Mwakyembe, threatening to abolish the TLS on the basis that the TLS was undertaking ‘activities of political activism’. The Minister’s statements reportedly came in the wake of news that several members of the opposition party, Chama cha Demokrasia na Maendeleo (CHADEMA), were vying for leadership positions within the TLS ahead of their 2017 annual elections. In March 2017, the TLS elected as its President Mr Lissu, who also held the position of Chief Whip and Legal Advisor to CHADEMA. At this stage, the already tense relationship between the government and the TLS intensified, with the former viewing and treating the TLS – and by extension the legal profession – as an opposing force. The Matrix was criticised as an attempt by the government to control the regulation of the legal profession, particularly with powers to strike lawyers off the roll.

In the recently passed Tanganyika Law Society (Elections) Regulations, in March 2018, the Attorney General is accused of unilaterally modifying certain sections of the draft regulations submitted by the TLS, to include provisions prohibiting members of the TLS that are ‘public servants, members of parliament, a ward councillor or holding a leadership in a registered political party’ from contesting in the TLS’ internal elections. During the mission, the delegation heard that Mr Lissu was elected as President of the TLS by an overwhelming majority of members not because of his political affiliation with CHADEMA, but because his campaign best represented the concerns of many members of the law society. The imposed prohibition of certain classes of individuals from holding office within the TLS is concerning. Lawyers, like all other citizens, have the right to freedom of association. Furthermore, the Attorney General’s actions amount to an interference by the executive in the internal affairs of the law society, in contravention of recognised international standards for the independence of the legal profession.

At the same time, there was some consensus among lawyers interviewed that there is a genuine need to revisit and improve the overall self-regulation of the legal profession in Tanzania, including strengthening the enforcement of professional ethics among lawyers,  and continuing legal education programmes for lawyers. Such initiatives should be pursued without government involvement.

Concerning the shooting of Mr Lissu and the bombing of the offices of IMMMA Advocates and Prime Attorneys, all within a short space of time, it was evident to the delegation that the attacks had a deeply chilling effect on the legal profession. Lawyers reported high levels of fear regarding openly criticising the government or representing clients that are in dispute with the government, and a sense of rising lawlessness in Tanzania. As of the date of this report, there have been no significant developments in the investigation of the shooting of Mr Lissu or on the attack on IMMMA Advocates. There is significant scepticism among various members of the legal profession that, absent an independent body tasked with thoroughly investigating these crimes, there will be no justice for these acts. The government of Tanzania has a duty to ensure that lawyers are not harassed, intimidated or threatened by the government or third parties in retaliation for carrying out their legal work. The failure to disassociate lawyers from their clients and generally to respect, protect and promote the role of lawyers undermines their ability freely to perform their professional duties, which in turn has a direct impact on the effective functioning of Tanzania’s justice system.

Freedom of expression is a fundamental right guaranteed in Tanzania’s Constitution and several international human rights treaties to which it is a party. It is the vehicle without which citizens cannot express and exchange information, or share views, that enable them to engage effectively on policies that affect them. Lawyers, like other citizens, are entitled to freedom of expression; however, the numerous criminal cases against Mr Lissu in response to him publicly criticising President Magufuli concerningly exhibits an intolerance for criticism and dissenting views. Regional and international bodies have consistently held that criticism of public officials and statements on matters of public interest should be afforded the highest level of protection.

While the delegation’s mission was primarily to examine the state of the independence of the legal profession in Tanzania, it is increasingly evident that the threats to the profession reflect an alarmingly broader threat to the rule of law, democracy and human rights in Tanzania. In recent months, journalists, university students and musicians have faced charges for ‘insulting the president’. Opposition rallies have been banned and various non-governmental organisations (NGOs) and churches have been threatened with deregistration. In December 2017, a journalist disappeared under mysterious circumstances and, in February 2018, two members of the opposition party, CHADEMA, were brutally murdered. Most recently, six leaders of the CHADEMA opposition party were arrested for allegedly participating in an unlawful gathering and charged with ‘rebellion’ and ‘sedition’.

Tanzania has long been regarded as one of the more politically stable countries in the region and, in the last two decades, Tanzania has enjoyed steady economic growth. The ongoing situation in Tanzania threatens these achievements. This report and its recommendations serve to encourage Tanzania to respect fundamental freedoms, such as freedom of expression, which foster public debate and thereby strengthen government policy. An independent legal profession plays an important role in ensuring rule of law and democracy, which are strong pillars for sustainable development.

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