Hon. Prof. Rémy Ngoy Lumbu

Chairperson, African Commission on Human and Peoples’ Rights

Special Rapporteur on Human Rights Defenders,

Focal Point on Reprisals in Africa,

Focal Point on Judicial Independence in Africa,

Dear Hon. Chairperson,

Re: Communication from the Pan African Lawyers Union regarding the ongoing threats to the independence of the legal profession in the United Republic of Tanzania

The Pan African Lawyers Union (hereinafter PALU) submits that the independence of the legal profession in the United Republic of Tanzania (hereinafter Tanzania) is under a systemic threat. PALU has been monitoring the events in Tanzania since 2019 and is deeply concerned considering the most recent developments.

Background

Since 2015 lawyers in Tanzania have faced numerous challenges from various branches of government including executive, legislative, and judicial institutions. The systemic suppression and subsequent weakening of the legal profession began with the enactment of the Advocates Act of 2015 by parliament. This Act threatened the independence of the legal practitioners in the country by granting discretion and access to Advocates’ conduct management to key members of the Executive.

Provisions of this Act, including Section 4, grants powers to the Attorney General (AG) or Deputy Attorney General (DAG) and the Director of Public Prosecution (DPP) over disciplinary measures of legal practitioners by making part of the composition of the Advocates Committee whose mandate is to take disciplinary proceedings against lawyers in the country. Other notable provisions of this Act include the structure of the Committee, decision-making by a simple majority, the quorum requirements, and the broad discretion granted to the AG in scheduling meetings and initiating misconduct proceedings against advocates.

Whereas the Advocates’ Act was amended in 2019, provisions pertaining to the discipline and conduct control of the profession remained. The current Advocates Act of 2019, significantly alters the governance and subsequently the independence of lawyers in the country, as it has granted officers of the executive, excessive involvement in the management of the  legal profession In the country.

Findings

Since 2019, we have documented numerous instances of retaliatory administrative actions against lawyers, particularly by the Advocates’ Committee. These include the retaliatory institution of proceedings for disbarment, suspension of licenses and other forms of professional reprisals. We have also noted several instances of intimidation tactics such as arbitrary arrests, detention and threats employed against lawyers in the country.

So far, we have recorded thirteen cases of reprisals against lawyers in Tanzania. These include six proceedings initiated by the AG at the Advocates Committee, resulting in four suspensions between 2020 and now. Additionally, there have been several cases involving threats to life—one of which forced a lawyer to temporarily seek exile—and instances of arbitrary arrests and detention. These situations sorted by year, include:

1. 2019 – Permanent Disbarment of one lawyer by the Advocates Committee, for making alleged disparaging comments against the Executive, in her written submissions. While this disbarment was set aside by the High Court, this lawyer remains indefinitely suspended.
2. 2020 – One lawyer was arbitrarily handed a two-year suspension from practice, while two other proceedings for disbarment were initiated by the AG at the Advocates Committee against two other lawyers, for commenting on court cases.
3. 2023- One lawyer received a six-month suspension by the Advocates Committee for filing a case against the Government of Tanzania in relation to a deal between the government and a private company. Another lawyer acting as Counsel for the suspended lawyer in the disciplinary case was also suspended summarily by the Advocates Committee for six months. A third lawyer recorded to have spoken against the government’s deal was arbitrarily arrested, detained, and subsequently had proceedings instituted against him by the AG at the Advocates Committee
4. 2024- One lawyer has been banned from practice for five years, with the possibility of extending the ban to 10 years, if they do not pay compensation to the government worth ten million Tanzanian Shillings
5. Further, when the Tanganyika Law Society (TLS) decided to hold an Extra-ordinary General Meeting (EGM) on the 16^th of December 2023, to discuss these concerning events, including the powers of the Advocates’ Committee, this meeting could not go onafter the High Court granted temporary orders stopping it, in a most irregular manner,  on the eve, i.e. 15^th of December 2023. Many legal professionals have criticised this application and the decision to temporarily suspend the meeting as being a deliberate attempt at preventing discussions on the fairness of the Advocates Committee.

In Kenya: in 2024, following June – August Genz Protests following controvercial punitive tax laws more that 1600 individuals were arrested and charged under various laws. It took the leadership of the Law Society of Kenya to partner with CSOs including Defenders Coalition to ensure all protesters were freed and bail paid. Lawyers including the president of LSK were threatened with abductions. When the LSK filed a Harbeas Corpus against abduction of 3 HRDs and the police failed to act resulting to a contempt of court against the Acting Inspector General of Police, the Judging presiding the matter had his security withdrawn. In another incident a magistrate was short dead when she read an unfavourable judgement against a police officer.

Recommendations

The above accounts demonstrate a series of unfortunate outcomes that seriously undermine the capacity of the Judiciary and legal profession to effectively play their role in defense of their Constitution and laws of Tanzania, African Human and Peoples’ Rights standards, as well as ensuring the existence of an independent and impartial judiciary.

PALU would like to reiterate the goals envisioned in Agenda 2063 which includes an Africa with a universal culture of good governance, democratic values, respect for human rights, justice and rule of law. This goal cannot be attained in the absence of an independent, and impartial judiciary supported by an independent legal profession and strong bar associations working together within the confines of the law to ensure and promote equal access to justice for all.

Moreover, ASCHPR/Res. 570(LXXVII) 2023 comprehensively outlines the relevant standards for Judicial Independence in Africa. These standards specifically provide for the role of a strong and independent legal profession and stipulate the need for judicial independence and impartiality.[1] Furthermore, a legitimate democracy, underpinned by the rule of law, requires an active and vibrant civil society, independent oversight mechanisms and human rights defenders.

With appreciation for the activities of the Honorable Commissioner’s office and recognition of your mandate as the Focal Point for judicial independence in Africa, we request engagement with the situation in Tanzania. We make the following recommendations: –

1. Investigate and document instances of interference with the judiciary and legal professionals, including issuing a call for submissions on incidents of reprisals that have occured in the last five years to date.
2. Prioritize the holistic development of sustainable solutions. This includes engagement to facilitate the examination of perceived challenges interfering with the independence of the legal profession in Tanzania and, to facilitate dialogue between the relevant national authorities and other stakeholders.

We highly value our longstanding partnership with the African Commission and remain available to support and facilitate the office of the Focal Point in this and other matters.

Please receive the assurances of our highest considerations.

Yours Faithfully,

Donald Deya,

Chief Executive Officer, Pan African Lawyers Union (PALU)

[1] The UN Basic Principles on the Role of Lawyers (paragraph 23) and IBA Standards for Independence of the Legal Profession guarantee the right of Members of Bar Associations, collectively or individually, to take part in public discussion of matters concerning the law and the administration of justice.