By Alex Tawanda Magaisa
IN my previous writings, I have often referred to the shortcomings in various professional services such as auditors and bankers and how they impact on corporate governance and the ec
onomic development of the nation.
In the last few months the Reserve Bank has made important strides in trying to address some shortcomings in the banking sector. It has become apparent however, that several other professional services need to be looked into, with a view to improving the regulatory environment, although the baseline is that any approach towards regulation must always be grounded on the rule of law.
We have criticised some of the new regulations in the banking sector for their failure to comply with key constitutional requirements. Today I risk drawing the wrath of my fellow learned brothers and sisters in the legal profession and argue that the profession to which I belong needs to seriously consider its position and strengthen the enforcement of regulations and possibly to revamp the training regime.
Across the world, lawyers have long been at the receiving end of a plethora of cruel jokes. The attitude of the public may be based on the facts on the ground but it may also be due to a misunderstanding of the job that we are called upon to do.
However, it remains necessary to maintain the integrity of the profession. This partly has to do with the training regime that lawyers undergo as well as the general conduct of practitioners in practice.
In my view, there are inadequacies in our legal training system as well as poor enforcement of regulations by the regulatory authority – the Law Society of Zimbabwe.
A story is told of a lawyer who on one morning appeared on remand as the accused. He stood down from the dock and sat in the public gallery. In the next minute he rose from the public gallery to take the defence lawyer’s seat to represent an accused person who was also appearing in the same court. One wonders how the members of the gallery viewed such behaviour and its implications on the way the rest of the profession is perceived.
First, it is important to review the system by which lawyers are produced in the system. For many years the Faculty of Law at the University of Zimbabwe (UZ) has been the main production centre for lawyers in the country. Increasingly, there are others who graduate from institutions beyond the borders with South Africa being the main source.
For a while and until recently, the Great Zimbabwe University (GZU) in Masvingo has been offering a law degree albeit under conditions that were eventually deemed unacceptable by the Law Society of Zimbabwe and the Council for Legal Education.
The news is that after the closure of the law school at the GZU, most of the students have been transferred to the UZ where they will now begin their law degree. Consequently, we understand that the enrolment of first-years at the UZ is about 400 students. This is probably more than the number of students that were in the whole law faculty at the time that I did my first year in 1994.
Undoubtedly, there are serious concerns about the quality of legal education in these circumstances. It is of course open to question whether those students that came from the GZU met the qualifications that are currently required by the UZ for one to study law. This may be so considering that there are thousands other perhaps better qualified “A” level students who were unable to enrol on the law degree at the UZ due to the higher standards of competition. On the grounds of distributive justice, it cannot be fair that other better qualified students failed to do so yet this group coming from a sub-standard law school can now be enrolled, precisely because of the mistakes of that institution. It is tantamount to getting into the law faculty by default.
Firstly, the faculty of law at the UZ has limited capacity. Even when we were 50 students in the first year class of 1994, the small library was still incapable of meeting our academic and research demands at one time. Law reports, the key instruments in the study of the discipline were at most three copies for 50 students. Indeed, the library seating capacity was also limited. They have now extended it but the academic material remains scant and given the deterioration of standards at the institution, the situation is certainly worse than it was in 10 years ago. It is hard to comprehend how the faculty will manage given this limited capacity. Perhaps the logical step is to ensure that those responsible for influencing this decision will help to mobilise resources to cater for the increased demand.
The depletion of resources is also compounded by the fact that experienced academic staff at the faculty have left for greener pastures new due to the poor working conditions and the lack of academic freedom that affects the whole institution. There is inevitably more part-timers. The increased burden brought about by the load of students plus limited academic materials is sure to drive more away, leaving the inexperienced part-timers and practitioners to do the job of educating lawyers.
Having enjoyed time in both practice and the academic world, I know that there is a big gulf between those two. The faculty needs full-time academicians to do their academic and research work. But the university generally ought to improve conditions of work if it is to attract properly qualified and experienced staff.
The legal journals that flourished in the 1980s and 90s have virtually disappeared leaving a gulf that limits the resources for students and staff. Often times we have to resort to the media to discuss important legal developments to reach the home audience otherwise our work goes to foreign journals which never reach home. Yet as resources diminish, we are busy enrolling more numbers of students – we end up producing para-legals masquerading as lawyers into the system.
There is also the issue of training graduate lawyers to become practitioners. Before Independence, the system was that law graduates had to serve Articles of Clerkship with law firms before being admitted to practice law. This was similar to the system that is used to train chartered accountants today.
At Independence, the state sought to open the legal profession to more black people. The Articles system was perceived as being too restrictive and was thus abolished in favour of an integrated law degree (the LLB). That meant that instead of three years, it now takes four years to study law at the faculty with the added components of procedural law and practical/clinical skills.
Students also do attachments with judicial bodies and law firms for limited periods during the vacations. The result is that under the present system law graduates are churned directly into the profession from the UZ and until recently, could even set up law firms within the first few months.
The change saw the increase in the number of black lawyers and law firms across the country. However, it was observed in the mid-1990s that this system had shortcomings and moves were initiated to bring back a system similar to the Articles of Clerkship.
I must confess that in 1996, as one of the leaders of the Zimbabwe Law Students Association (Zilsa), we campaigned vigorously to oppose the Council for Legal Education’s intentions to re-introduce the system. We visited parliament to lobby MPs and took to the streets to demonstrate against it. This was a move to block the young black lawyers from the profession, we complained. Indeed some bought our arguments, to our greatest pleasure.
With the benefit of hindsight, I realise that we were rather naïve at the time. It was self-interest rather than genuine concerns about the legal profession that concerned us. Indeed, I can understand the young lawyers and law students who are seething with anger as they read this piece.
Ten years ago, I would have felt like them too and 10 years from now and with greater exposure, I am sure they too will hold the position that I do today or at least they will understand. Experience has taught me that our system is lacking and requires a major overhaul.
* Alex Tawanda Magaisa is Baker & McKenzie Lecturer in Corporate and Commercial Law at the University of Nottingham firstname.lastname@example.org
To be continued