Warning Shots: Threats to the

Independence of the Legal

Profession in Tanzania
April 2018

Joint report of the American Bar Association Center for Human Rights, the International Bar Association’s
Human Rights Institute, the International Commission of Jurists, the East Africa Law Society, the Pan
African Lawyers Union and the Southern Africa Development Community Lawyers Association.

This report has been compiled in accordance with the Lund-London Guidelines 2009
([Link])
Table of contents

Glossary of terms 4

Executive summary 5

Recommendations 8

Introduction 10

Background 11

Threats to the legal profession in Tanzania 12

A. Proposal to reform the legal profession 13

B. Interference with and threats to abolish the Tanganyika Law Society 15

C. Verbal and physical attacks on lawyers and the legal profession 19

D. Freedom of expression for lawyers 24

E. Access to legal advice and representation by members of the public 25

Conclusion 29

Annex A 30

Annex B 32
Glossary of terms
Acronyms

ABA CHR American Bar Association Center for Human Rights

CCM Chama Cha Mapinduzi party

CHADEMA Chama cha Demokrasia na Maendeleo

(Swahili for Party for Democracy and Progress)

DPP Director of Public Prosecutions

EALS East Africa Law Society

IBAHRI International Bar Association’s Human Rights Institute

ICCPR International Covenant on Civil and Political Rights

ICJ International Commission of Jurists

NGO non-governmental organisation

PALU Pan African Lawyers Union

SADC Southern Africa Development Community

SADCLA SADC Lawyers Association

TLS Tanganyika Law Society

UN United Nations

Abbreviations

African Charter African Charter on Human and Peoples’ Rights

African Commission African Commission on Human and Peoples’ Rights

Lund-London Guidelines on International Human Rights Fact-Finding

Guidelines Visits and Reports

Principles on Principles and Guidelines on the Right to a Fair Trial

Fair Trial and Legal Assistance in Africa
in Africa

Tanzania United Republic of Tanzania

TLS Act Tanganyika Law Society Act

4 WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA   APRIL 2018
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

APRIL 2018   WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA 5
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
caused disquiet among members of 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 to perform freely 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. In the absence of this right, 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’.

6 WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA   APRIL 2018
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.

APRIL 2018   WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA 7
Recommendations
To the Tanzanian government:

• Refrain from interfering in the internal affairs of the TLS.

• Immediately repeal the recently passed Tanganyika Law Society (Elections) Regulations,
particularly the sections unilaterally inserted by the Attorney General.

• Ensure that the power to censure lawyers for misconduct, admit them to the roll and disbar them
is in the hands of an independent, impartial body, free of politicisation and that lawyers are not
potentially subjected to disciplinary proceedings in a politically motivated manner.

• Refrain from making statements that undermine the professional role of lawyers, whose role is to
help ensure access to justice for all.

• Urgently investigate reports that lawyers have been intimidated, harassed and even detained
when attempting to visit clients being held in police custody. Following this investigation, the
government should make its findings public and set out concrete steps to ensure a conducive
environment for lawyers and that they are not harassed and intimidated by state agents or
non-state actors in retaliation for carrying out their professional duties.

• Urgently appoint an independent authority to investigate and publicise the findings of:

– the shooting of Mr Lissu, President of the Tanganyika Law Society; and

– the bombing of the offices of IMMMA Advocates.

• Take steps to decriminalise criticism of the executive, in line with Tanzania’s international legal
obligations.

To the African Commission on Human and Peoples’ Rights:

• Raise and follow up issues highlighted in this report during its promotional and protective
activities, in light of Tanzania’s obligations under the African Charter on Human and Peoples’
Rights.

• Engage with Tanzanian authorities on the issues detailed in this report, during its state reporting
procedure.

To the Tanganyika Law Society:

• Vehemently guard its independence from the executive branch that would seek to minimise the
independence of organisations and ultimately that of the legal profession.

• Ensure and protect the best interests of their members in accordance with the TLS Founding Act.

8 WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA   APRIL 2018
• In the event that members are engaged in political activities, clear steps must be taken to ensure
that their political activities do not overlap with their duties at the TLS and that this distinction is
evident to the public.

• Ensure that members of the TLS maintain the highest standards of professionalism and ethics
to their clients and that steps are taken to ensure that the system for disciplining lawyers who
fall short of professional and ethical standards is effective, impartial and properly enforced in
practice, in line with international standards.

To Tanzanian lawyers:

• Uphold the highest standards of independence, professionalism and ethical conduct at all times.

• Continue to support publicly the rule of law, including the independence of the legal profession
in Tanzania.

To the international community:

• Using diplomatic channels, communicate concern that the Tanzanian authorities should respect
the rule of law and the independence of the legal profession.

• Provide technical and financial assistance to the government of Tanzania, the TLS and various
other stakeholders of Tanzania’s legal system to ensure that any reforms to the framework
governing the legal profession are carried out in line with international best practices and
standards.

• Provide technical assistance to the TLS to strengthen its role as a member organisation to ensure
the independence of the legal profession and the continued strengthening of the skills and
capacity of its members.

APRIL 2018   WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA 9
Introduction

1. This report has been prepared following a fact-finding mission to Tanzania in October 2017
by a delegation of representatives from five organisations (the ‘delegation’): the American Bar
Association Center for Human Rights (ABA CHR), East Africa Law Society (EALS), International
Bar Association’s Human Rights Institute (IBAHRI), International Commission of Jurists (ICJ),
Pan African Lawyers Union (PALU) and Southern Africa Development Community (SADC)
Lawyers Association (SADCLA).

2. The mission’s purpose 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’.1

3. In doing so, the delegation was asked to analyse the following for compliance with international
standards and the promotion of the independence of the legal profession in Tanzania:

(a) the current domestic legal framework, including the Tanganyika Law Society Act (the ‘TLS
Act’) and the Advocate Act; and

(b) any proposed legislative changes to the legislation affecting the legal profession, including
the Matrix of proposed changes.

4. It was also tasked with gathering information on reported physical and oral attacks on lawyers
and/or law firms and to assess the ability of lawyers to exercise freely the right to freedom of
expression, belief, association and assembly.

5. This report is the result of that mission. Its findings are based primarily on the information
gathered during the meetings held in the course of the delegation’s visit to Tanzania
between 16–19 October 2017. They are also based on information received in written
form either during or after the visit. An analysis of applicable domestic and international
legal instruments, secondary sources, including non-governmental organisations (NGOs)
and United Nations human rights reports, academic articles and media reports, was also
undertaken. The report was compiled in accordance with the Guidelines on International
Human Rights Fact-Finding Visits and Reports (the ‘Lund-London Guidelines’).

6. The report sets out the delegation’s observations and conclusions in respect of these concerns,
as well as recommendations for the improvement of the situation regarding the legal profession
in the country.

1 Fact Finding Mission to Tanzania, Terms of Reference.

10 WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA   APRIL 2018
Background

7. Tanzania is a country in East Africa with a population of approximately 55 million people.

Tanzania was formed in 1964 as a union between Tanganyika (the mainland in present-day
Tanzania) and Zanzibar (an archipelago near the coast of East Africa). Although it is a united
republic, the Tanzanian Constitution and system of government afford a certain amount of
political autonomy to Zanzibar. For example, Zanzibar has its own head of government, known
as the President of Zanzibar, its own representative body and its own Attorney General.

8. As a result of this history, the legal profession in the Tanzanian mainland is governed separately
from Zanzibar. Of greatest relevance to the immediate report is the existence of two separate
legal frameworks for the legal profession and two separate representative organisations: on
the mainland, the relevant organisation is the TLS; in Zanzibar, the equivalent body is the
Zanzibar Law Society. Additionally, the legal profession on the mainland is governed mainly by
the Advocates Act (about which more is said below), whereas Zanzibar maintains separate legal
requirements. This division also means that the proposed changes to the law discussed in this
report are of far greater immediate relevance on the Tanzanian mainland than in Zanzibar.

9. Tanzania has a democratic system of governance, with multi-party elections held periodically.
The presidential term of office is for five years, renewable once. Tanzania’s last presidential
elections were in October 2015, when President John Pombe Joseph Magufuli was elected
President of Tanzania. He formally replaced outgoing President Jakaya Mrisho Kikwete on
5 November 2015. President Magufuli belongs to the Chama Cha Mapinduzi (CCM) party,
which has been in power in Tanzania since the party’s establishment in 1977. CCM has gone
on to win every presidential election held in Tanzania since the re-establishment of multi-party
democracy in 1992.

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Threats to the legal profession in Tanzania
Background context

10. In February 2017, the then-Minister of Constitutional and Legal Affairs in Tanzania, Dr
Harrison Mwakyembe, in a televised interview, threatened to ban the TLS on the basis
that the organisation was engaging in political activities.2 Following this, in June 2017, the
government circulated a Matrix listing 15 areas for potential reform in the legal profession to
various stakeholders in Tanzania, including the TLS, requesting their comment. A copy of the
translated Matrix is annexed hereto as Annex B. The Matrix made clear that the areas listed were
earmarked for reform under a new law governing the legal profession, though the nature of that
reform was not set out explicitly in the body of the document. Instead, the document simply lists
areas without spelling out exactly what reforms are proposed.

Current legal provisions regulating the legal profession in Tanzania

11. The Tanzanian Constitution makes limited provision for the position, or conduct of, the legal
profession. It makes general provision for the conduct of legal proceedings at Articles 107A and
107B.3 Article 107A provides, among other things, that legal proceedings should observe certain
basic principles, including, for example, ‘impartiality to all without due regard to one’s social or
economic status’ and ‘not to delay dispensation of justice without reasonable ground’.

12. More detailed provisions regarding the legal profession in Tanzania are reserved for statute. At
present, the legal profession in Tanzania is governed by two laws:

(a) the TLS Act; and

(b) the Advocates Act.

13. The TLS Act established the TLS in 1954.4 It renders membership of the TLS automatic for
all advocates with a practising certificate.5 It also charges the TLS with, among other things,
representing, protecting and assisting ‘members of the legal profession in Tanzania as regards
conditions of practice or otherwise’,6 and it sets the structure of the society, its membership and
the frequency of its meetings.7

14. The Advocates Act governs the practice of law in Tanzania. It empowers the Chief Justice to
admit individuals with the requisite qualifications as advocates.8 It also establishes a ‘Council
for Legal Education’ comprising the Chief Justice, Attorney General, Dean of the Faculty

2 ‘Lawyers fault Mwakayembe’s threat to ban TLS’ The Citizen (17 February 2017), available at [Link]/News/Lawyers-fault-
Mwakyembe-s-threat-to-ban-TLS/1840340-3816756-yyoi77z/[Link].
3 Section 107B states that, ‘[i]n exercising the powers of dispensing justice, all courts shall have freedom and shall be required only to observe
the provisions of the Constitution and those of the laws of the land’.
4 TLS Act, section 3.
5 TLS Act, section 7.
6 TLS Act, section 4.
7 TLS Act, sections 15–30.
8 TLS Act, section 8.

12 WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA   APRIL 2018
 of Law of Dar es Salaam University and two advocates nominated by the TLS.9 The role of
the Council for Legal Education is ‘to exercise general supervision and control over legal
education in Tanzania’.10

15. The Advocates Act further places registration and disbarment of lawyers in Tanzania under the
control of the Chief Justice. An advocate seeking admission to the roll must apply to the Chief
Justice.11 Equally, as set out above, the Chief Justice currently has the power to remove an advocate
from the roll in cases of misconduct.12 The Act also establishes a supervisory committee called the
‘Advocates Committee’.13 According to Article 4 of the Act, the Advocates Committee comprises:

(a) a judge of the High Court;

(b) the Attorney General, or the Deputy Attorney General or the Director of Public
Prosecutions; and

(c) a practising advocate nominated by the TLS.

The Advocates Committee has the power, among other things, to determine complaints of
misconduct made against advocates and applications for the removal of an advocate’s name from
the roll.14 It can also suspend an advocate for a temporary period.15

These acts became law in 1954 and 1955, respectively, meaning that they pre-date Tanzanian
independence.16

A. Proposal to reform the legal profession

The Matrix

16. In summary, the Matrix proposed to establish a new body called the ‘Registration Board of
Lawyers’ and to give this body authority over various matters, which we set out below.

17. According to the Matrix and to individuals with whom the organisations met, the Registration
Board of Lawyers would be responsible for the full range of regulatory oversight over the legal
profession, including:

(a) managing the registration of lawyers and maintaining a register of all legal professionals;

(b) approving and revoking licences to practise;

(c) improving legal education and checking that lawyers are complying with their continuing
professional education requirements; and

9 Advocates Act, section 5A.

10 Advocates Act, section 5B.
11 Advocates Act, section 8.
12 Advocate Act, section 22.
13 Advocates Act, section 4.
14 Advocates Act, section 13.
15 Advocates Act, section 13(4).
16 Tanzania became independent on 9 December 1961.

APRIL 2018   WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA 13
 (d) conducting ad hoc inspections of law firms and legal offices to ensure that they are complying
with the law.

18. According to the Matrix, these functions would be carried out by the Registration Board
of Lawyers ‘cooperating with’ the Chief Justice. At present, it is unclear what the proposed
composition of the Registration Board of Lawyers would be or to whom it would report,
though the organisations heard fears that it would likely be controlled by, and report to, the
Ministry of Justice.

19. The delegation heard concerns that the proposed introduction of this Registration Board of Lawyers
would effectively provide the government (through the Minister of Constitutional and Legal Affairs)
with the same powers currently exercised by the Chief Justice. Several people with whom the
delegation met with expressed the view that this would mean, in effect, that the government could
remove lawyers from the roll as a form of retribution if they were to take on cases for individuals or
groups opposed to government policy.

Relevant international standards governing disbarment

20. Other than the discretion given to governments to introduce a legislative requirement that lawyers
should hold the nationality of the country in which they practise, the means by which individuals
gain entry to the legal profession should not permit discrimination of any kind, including on political
grounds.17

21. Once lawyers have been admitted to the bar, the Office of the Special Rapporteur on the
Independence of Judges and Lawyers – the mechanism set up by the UN to identify, monitor and
respond to threats against the legal profession – has made it clear that disbarment and other forms
of disciplinary measures against lawyers for misconduct should not be carried out by a politicised
body or for political motives.18 The Principles and Guidelines on the Right to a Fair Trial and Legal
Assistance in Africa (the ‘Principles on Fair Trial in Africa’) further require disciplinary proceedings
against lawyers (including disbarment) be ‘brought before an impartial disciplinary committee
established by the legal profession, before an independent statutory authority, or even before a
judicial body, and… be subject to an independent judicial review’.19

Relevant provisions of Tanzanian law

22. At present, registration and disbarring of lawyers in Tanzania is overseen by the Chief Justice. An
advocate seeking admission to the roll must apply to the Chief Justice.20 Equally, as set out above,
the Chief Justice has the power to remove an advocate from the roll in cases of misconduct.21

23. According to the Matrix of proposed changes to the legislation governing the legal profession,
these powers may, in future, be given to a new Regulatory Board of Lawyers, which would
cooperate with the Chief Justice. It is unclear, on the basis of the Matrix, whether and how

17 UN Basic Principles on the Role of Lawyers, Article 9 and Principles on Fair Trial in Africa, Principle I. Independence of Lawyers, (a).
18 Report of the Special Rapporteur on the Independence of Judges and Lawyers, A/64/181, para 55.
19 Principles on Fair Trial in Africa, Principle I. Independence of Lawyers, (o).
20 Advocates Act, section 8.
21 Advocate Act, section 22.

14 WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA   APRIL 2018
 the Minister of Constitutional and Legal Affairs would be allowed to exercise any powers in
relation to the legal profession.

The organisations’ observations

24. As a preliminary matter, the delegation notes that there has been no official indication that
the government of Tanzania intends to grant disciplinary (or any other) power over the legal
profession to the Ministry of Justice. As noted above, the organisations heard this rumour
from individuals with whom they met in Tanzania, none of whom were representatives of the
government. It is not reflected in any of the government’s own pronouncements about potential
reform, nor in the Matrix of areas for reform. The delegation requested the government’s
comment in relation to these rumours, and in relation to the issues raised by the Matrix more
widely, but received no response.

25. Notwithstanding that these rumours have not been confirmed, in light of the prejudice of such
rumours and concerns raised, the delegation considered it worthwhile addressing these briefly.
If it is true that the government of Tanzania is considering granting powers over the legal
profession to the Ministry of Justice, then the delegation urges it to reconsider and to ensure
that whatever reform is put in place complies with the international legal standards set out
elsewhere in this report.

26. The delegation does not wish to speculate on whether the government would abuse the power to
register and disbar lawyers in circumstances where this power was transferred to the Minister of
Constitutional and Legal Affairs. However, providing the executive with control over disciplinary
proceedings for lawyers, including disbarment, runs counter to international standards. As
the UN Special Rapporteur on the Independence of Judges and Lawyers has stated, in order
to maintain the independence of the legal profession, the power to register and disbar lawyers
should not be exercised by members of the executive branch or a political party.22 It should,
instead, remain with the Chief Justice and/or an independent panel composed of individuals
who are independent of the government. The same is true for powers related to entry into the
legal profession.

B. Interference with and threats to abolish the Tanganyika Law Society

Background context

27. As noted above, prior to the delegation’s visit, there had been a rapid increase in tension
between the TLS and the government. One of the key points of tension was the TLS’ internal
election in March 2017. In February 2017, the government began to express concern at the
prospect of CHADEMA’s Chief Legal Officer and one of the most vocal critics of government
policy in Tanzania, Mr Lissu, being elected to the leadership of the TLS.23 Tension between
the government and the TLS during this period culminated in a statement by then Minister

22 Report of the Special Rapporteur on the Independence of Judges and Lawyers, A/64/181, para 55.
23 ‘EA law society: Minister wrong to intimidate TLS’ The Citizen (23 February 2017), available at [Link]/News/EA-law-society--
Minister-wrong-to-intimidate-TLS/1840340-3824496-14u34nf/[Link].

APRIL 2018   WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA 15
 of Constitutional and Legal Affairs, Dr Harrison Mwakyembe, threatening to shut down the
TLS on the grounds that it was undertaking ‘activities of political activism’.24 In that speech, Dr
Mwakyembe reportedly sarcastically taunted the TLS, calling for it to re-register as a political
party if it insisted on behaving politically.25

28. In March 2017, during the TLS’ annual general meeting, Mr Lissu was elected to the presidency
of the TLS, winning 1,411 votes out of 1,682.26 The delegation heard from several individuals that
on or immediately before the election, Mr Lissu was arrested. Many were of the opinion that the
arrest of Mr Lissu just before the election was an attempt to prevent him from being present and
to block his election as President of the TLS. Several online media reports covered Mr Lissu’s
arrest and made similar remarks.27

29. The delegation also heard that during the annual meeting, on the day members of the TLS
were going to cast their votes, several suspected state security agent forces were present and that
members of the police on horseback surrounded the venue. The delegation heard that, as a
result of the presence of the security forces, the atmosphere was tense as some members of the
legal profession felt intimidated with the police presence, which they felt was possibly meant to
influence the voting process. As with several other issues relevant to this report, the organisations
have invited the government of Tanzania to comment on the reported interference in the
elections of the TLS. In a follow-up letter to the Inspector General of Police, the organisations
enquired as to why there was heavy police presence during the TLS election, and if this was
standard police procedure for the TLS’ annual general meetings or if there was a particular
security concern. As of the date of this report, there has been no response from the government.

30. According to several individuals with whom the organisations met, this warning served to bolster
the resolve of many members of the TLS to vote for Mr Lissu, leading to an even higher number
of votes for Mr Lissu than might otherwise have been expected.

31. According to several interviewees, the government treated Mr Lissu’s victory with dismay and
this possibly cemented the government’s earlier opinion that the TLS had become politicised in
favour of the opposition to President Magufuli. The delegation also heard that, prior to March
2017, the TLS’ leadership had been regarded as dominated by individuals affiliated with CCM,
President Magufuli’s party. It was unclear to the organisations whether, either before or after
March 2017, the leadership of the TLS had taken decisions motivated by political considerations.

32. In early September 2017, six months after having been elected head of the TLS, Mr Lissu
was shot outside his home in Dodoma.28 As far as the delegation is aware, the identity of the

24 ‘EA law society: Minister wrong to intimidate TLS’ The Citizen (23 February 2017), available at [Link]/News/EA-law-society--
Minister-wrong-to-intimidate-TLS/1840340-3824496-14u34nf/[Link]. See also: ‘Tanzania threatens law society over “politicking”’ The East
African (20 February 2017), available at [Link]/news/2558-3820956-9rvli9z/[Link]. The Minister reportedly stated that,
‘[i]f TLS purports to have grown enough to engage itself in additional responsibilities of political activism, the government will not hesitate to
revoke all laws and regulations that enable its existence’.
25 ‘Tanzania: Lawyers Fault Mwakyembe’s Threat to Ban TLS’ [Link] (17 February 2017), available at [Link]
stories/[Link].
26 ‘Lissu wins TLS presidency’ The Citizen (18 March 2017), available at [Link]/News/Lissu-wins-TLP-presidency/1840340-3854644-
ugsugcz/[Link].
27 ‘Lissu arrested again as TLS election D-Day draws near’ [Link] (17 March 2017), available at [Link]
arrested-again-tls-election-d-day-draws-near.
28 ‘Tanzania’s Tundu Lissu recovering after gun attack’ Al Jazeera (8 September 2017), available at [Link]/news/2017/09/tanzania-
[Link].

16 WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA   APRIL 2018
 perpetrators remains unknown. Many individuals that the delegation spoke with expressed grave
concern that the attack on Mr Lissu was in response to his leadership of the TLS, as well as his
role in CHADEMA, where he has publicly criticised the government on several issues. See below
for a full discussion.

33. It recently came to the attention of the organisations that, sometime in March 2018, the
government of Tanzania published the Tanganyika Law Society (Election) Regulations 2018.29
According to a public statement by the Governing Council of the TLS on the publication of the
regulations, the TLS submitted a draft of its regulations to the Attorney General.30 The published
version, however, included several clauses that essentially prohibited members of the TLS from
running for positions within the TLS if at the time they are ‘a public servant, a member of
parliament, a ward counsellor or holding a leadership position in a registered political party’.31

34. According to the statement, these and other amendments to the original draft regulations by the
TLS were unilaterally made by the Attorney General.

Relevant international standards

35. Lawyers are entitled to form independent, self-governing professional bodies ‘to represent
their interests’.32 Those professional associations should cooperate with the government ‘to
ensure that everyone has effective and equal access to legal services and that lawyers are able,
without improper interference, to counsel and assist their clients in accordance with the law
and recognized professional standards and ethics’.33 Such bodies should remain independent of
government and other political influences.

36. At the same time, lawyers are entitled to freedom of expression, belief, association and assembly.
They may participate in public discussion of matters concerning the law, the administration of
justice and the promotion and protection of human rights and may join or form local, national
or international organisations and attend their meetings. In so doing, however, lawyers are
required to be mindful of their professional obligations and the recognised standards and ethics
of the legal profession.34

37. The office of the Special Rapporteur on the Independence of Judges and Lawyers has, on a
number of occasions, expressed concern about the existence of state-controlled associations
of lawyers, which the office sees as seriously undermining the independence of lawyers. The
office has further emphasised the need for associations of lawyers to be independent from the
executive branch and called upon states to ‘recognize that freedom of expression and association

29 P E Mselewa, Statement of the Governing Council of Tanganyika Law Society on the Publication of the Tanganyika Law Society (Elections)
Regulations of 2018 in the Government Gazette, JamiiForums, available at [Link]/threads/tanganyika-law-society-issues-
statement-on-the-publication-of-tls-elections-rules-2018.1413138/page-2.
30 Ibid.
31 The Tanganyika Law Society (Elections) Regulations 2018, available at [Link]
regulations-2018.
32 UN Basic Principles on the Role of Lawyers, Article 24.
33 UN Basic Principles on the Role of Lawyers, Article 25.
34 UN Basic Principles on the Role of Lawyers, Article 23.

APRIL 2018   WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA 17
 of lawyers constitute essential requirements for the proper and independent functioning of the
legal profession and must be established and guaranteed by law and in practice’.35

38. Furthermore, international standards are clear that ‘the executive body of the professional
associations shall be elected by its members and shall exercise its functions without external
interference’.36

39. Finally, associations of lawyers, such as the TLS, should operate, as far as possible, independently,
which is to say without permitting government or political influence over its affairs. The Special
Rapporteur has further stated that membership of the executive body of lawyers associations
should be pluralistic ‘so that they are not dependent upon one political party’s interests, a
situation which clearly undermines the integrity and credibility of the profession’.37

The organisations’ observations

40. The organisations are concerned about the apparent unwarranted interference with the
independence of the legal profession in the country as manifested by:

(a) the verbal threats by the government to abolish the TLS;

(b) government allegations that the TLS had become politicised; and

(c) government interference in the election process at the TLS and the recent gazetting
of the Tanganyika Law Society (Elections) Regulations, 2018.

41. The delegation notes that lawyers, like other citizens, are entitled to hold political views and to
exercise their rights to freedom of opinion, expression and assembly. The fact, or perception,
that a majority of lawyers are sympathetic to the policies of a political movement cannot justify
hostility towards the legal profession or the TLS by the government.

42. The delegation considers it wholly inappropriate that the authorities should seek to interfere
with elections internally at the TLS. As noted above, one of the key guarantors of an
independent legal profession is the existence of an independent law society to represent its
members. The government must ensure that the TLS is free to determine how it is organised
internally, including with respect to the identity of its leadership.

43. The delegation is thus deeply concerned with the promulgation of the regulations, particularly
the unilateral inclusion of the clauses barring certain individuals from running for office within
the TLS based on their political affiliations. This development appears to confirm allegations
of discrimination against lawyers on the grounds of political affiliation. It suggests a targeted,
unjustified and unwarranted restriction of freedom of association and expression only for
members of the TLS. This is not in conformity with the Constitution of Tanzania, or its binding
international and regional treaty obligations.

35 See the report of the Special Rapporteur on the Independence of Judges and Lawyers, A/64/181 of 28 July 2009, paras 19–27 and 111–112.
36 Principles on Fair Trial in Africa, Principle I. Independence of Lawyers, (l).
37 Report of the Special Rapporteur on the Independence of Judges and Lawyers, A/64/181, para 27.

18 WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA   APRIL 2018
44. However, it is important that the TLS takes seriously its institutional role as an apolitical
representative of the legal profession. In the event that TLS members are engaged in political
activities, the TLS leadership must take steps to ensure that these political activities do not
overlap with their duties at the TLS and that this distinction remains evident to the public in a
way that avoids conflating the TLS with any particular political party or movement.

C. Verbal and physical attacks on lawyers and the legal profession

Context of attacks

45. As well as coming soon after the circulation of the Matrix, the mission to Tanzania came in
the context of a period of social and political tension in Tanzania. President Magufuli to date
has been focused on tackling economic and social issues facing Tanzania. He has undertaken
a high-profile anti-corruption drive aimed at ending endemic corruption and absenteeism by
employees of government departments.38 He has also been responsible for a confrontation
between the Tanzanian government and large, international mining corporations, culminating
in July 2017 in a controversial series of new laws aimed at ensuring that a greater proportion of
the profits of mining companies are retained for the Tanzanian public purse.39

46. At the time of the delegation’s visit to Tanzania, they were also told that President Magufuli’s
focus on the economy has led to criticism that his government is ignoring, and on occasion
undermining, civil and political rights in Tanzania. Although these matters are outside the scope
of the organisations’ terms of reference, they are noted here by way of setting the context for
the attacks on lawyers and the legal profession, as discussed below. A series of statements and
actions by the government apparently attacking the rights of vulnerable groups in Tanzania have
attracted strong criticism by NGOs in Tanzania and beyond. For example, in February 2017,
the Tanzanian government ordered the closure of 40 private health clinics that were providing
HIV-related medical services on the grounds that their existence served to promote gay sex.40
In June 2017, President Magufuli announced a new government policy preventing students
who fall pregnant during their studies from returning to school at the expense of the state.41
Persistent verbal attacks by government officials on NGOs attempting to assist affected groups
led 22 organisations, including Human Rights Watch and Amnesty International, to issue a joint
statement in July 2017 calling on the government to ‘immediately stop threatening the work of
nongovernmental organizations’.42

47. The Tanzanian government has also recently taken steps that limit the ability of media
organisations, NGOs and opposition leaders to undertake their work free from government

38 ‘What has Tanzania’s Magufuli done during his year in office?’ BBC News (4 November 2016), available at [Link]/news/world-
africa-37822740.
39 ‘Tanzania: Magufuli’s mining reforms are a masterclass in political manoeuvring’ African Arguments (17 July 2017), available at http://
[Link]/2017/07/17/tanzania-magufulis-mining-reforms-are-a-masterclass-in-political-manoeuvring.
40 ‘Tanzania stops 40 health centres from offering AIDs services fearing they promote gay sex’ ITV News (17 February 2017), available at [Link].
com/news/2017-02-17/tanzania-stops-40-health-centres-from-offering-aids-services-fearing-they-promote-gay-sex.
41 ‘Activists want govt to reconsider its decision, allow teen mothers back to school’ The Citizen (29 June 2017), available at [Link]/
News/Activists-want-govt-to-reconsider-its-decision-/1840340-3992324-3b5i4dz/[Link].
42 ‘Tanzania: Stop Threatening Rights Groups’ Human Rights Watch (6 July 2017), available at [Link]/news/2017/07/06/tanzania-stop-
threatening-rights-groups.

APRIL 2018   WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA 19
 oversight and control, severely limiting the scope for criticism of government policies in
Tanzania. In November 2016, for example, the government passed a new media law that, among
other things, created a new government-run board charged with accrediting journalists and
vetting stories that touch on issues of ‘national importance’.43 In June 2017, the Tanzanian police
announced an indefinite ban on opposition rallies and meetings, which continues to be in effect
as at the date of this report.44 In August 2017, the government announced that NGOs were
required to register with the government in order to allow the government to ‘vet’ them – those
that failed to register, or that failed the ‘vetting’ procedure, were shut down.45

48. More recently, two leaders of the CHADEMA opposition party were brutally murdered. In
early February 2018, Daniel John, who was responsible for the CHADEMA party in Hananasif
ward, Dar es Salaam, was kidnapped by a group of men and later found dead from machete
wounds to the head.46 A witness who was kidnapped at the same time says they were tortured
and questioned for supporting CHADEMA. Two weeks later, Godfrey Luena, a CHADEMA
councillor, was brutally murdered outside his home.47 Regional police confirmed the murder but
stated that the motive was unknown.48 Some members of CHADEMA have reportedly accused the
ruling party of being responsible for the attacks.49 In March, six members of the same party were
arrested and charged with sedition for participating in an alleged illegal protest.50 On 13 March,
the government of Tanzania introduced the Electronic and Postal Communications Regulation
2018 to regulate online content. The regulations give power to the Tanzania Communication
Regulatory Authority to control all online content and make it mandatory for online platform
users such as bloggers and YouTubers to pay an annual fee of USD $900 and obtain a licence.51
The regulations are viewed as part of President Magufuli’s clamp down on social media and
freedom of expression at large.52

49. All this has led to strong criticism of Tanzania in reports recently published by international
human rights NGOs. In its July 2017 statement, for example, Human Rights Watch stated that
‘Tanzania’s president and other top officials should be focusing on how to build the country
by helping everyone complete their education and ending discrimination’, rather than
undermining existing rights.53 Attacks on freedom of expression have also led to Tanzania’s
ranking in the World Press Freedom Index falling by 12 places – from 71st place in 2016 to 83rd

43 ‘JPM signs contentious Media Bill into law’ The Citizen (18 November 2016), available at [Link]/News/JPM-signs-contentious-
Media-Bill-into-law/1840340-3456590-cfi7jaz/[Link].
44 ‘Opposition fury as Tanzania bans opposition rallies’ Daily Monitor (8 June 2016), available at [Link]/News/World/Opposition-
fury-as-Tanzania-bans-opposition-rallies/688340-3240082-hpnpmfz/[Link].
45 ‘Tanzania requires NGOs to verify their registration status’ EY (16 August 2017), available at [Link]/gl/en/services/tax/international-
tax/alert--tanzania-requires-ngos-to-verify-their-registration-status.
46 ‘Tanzanian opposition Chadema party leader beaten to death’ Daily Nation (14 February 2018), available at [Link]/news/africa/
Tanzania-CHADEMA-leader-murdered/1066-4304584-r209f1/[Link].
47 ‘Second opposition politician killed in Tanzania’ Daily Nation (28 February 2018), available at [Link]/news/africa/Opposition-
politician-killed-in-Tanzania/1066-4317646-731mgdz/[Link].
48 Ibid.
49 Ibid.
50 ‘Six Tanzania opposition leaders charged with sedition’ Reuters (28 March 2018), available at [Link]/article/us-tanzania-politics/six-
tanzanian-opposition-leaders-charged-with-sedition-idUSKBN1H4286.
51 ‘Tanzania: RSF decries law that will kill off Tanzania’s blogosphere’ Reporters Without Borders (12 April 2018), available at [Link]
news/tanzania-rsf-decries-law-will-kill-tanzanias-blogosphere.
52 ‘Tanzanian government demands $930 fee from bloggers in internet clampdown’ CNN (13 April 2018), available at [Link].
com/2018/04/12/africa/tanzania-blogging-internet-freedoms-africa/[Link].
53 ‘Tanzania: Stop Threatening Rights Groups’ Human Rights Watch (6 July 2017), available at [Link]/news/2017/07/06/tanzania-stop-
threatening-rights-groups.

20 WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA   APRIL 2018
 in 2017.54 Such developments are broadly in line with information that the delegation heard
while in Tanzania – interviewees were overwhelmingly negative about the impact of measures
being put in place by the government, with some expressing the view that civil and political
rights in Tanzania were likely to be further undermined in future.

50. As noted above, although it is outside of the delegation’s terms of reference to comment in
detail on these developments, it is undeniable that these developments are extremely concerning
and the organisations encourage the government to act rapidly and robustly to reinforce its
support for fundamental human rights and civil liberties in all areas.

51. This report will now turn to the physical and verbal attacks on lawyers, bearing in mind the
restricted environment outlined above. In addition to the increased tension with the TLS in
2017, the delegation heard that there was a concerning increase in the number of violent
incidents perpetrated against members of the legal profession:

(a) On 26 August 2017, the offices of a well-known Tanzanian law firm, IMMMA Advocates,
were bombed during the night. IMMMA Advocates had acted as local counsel in an
international case brought by a mining company against the government of Tanzania.
Although the delegation understands that the investigation into this incident remains
ongoing, many of the individuals with whom the organisations met privately expressed
the view that IMMMA Advocates may have been targeted because of its representation of a
company with interests opposed to those of the government.

(b) Three weeks after the attack on IMMMA Advocates, on 12 September 2017, the offices of
Prime Attorneys were broken into by four unknown assailants.55 Several documents were
stolen as well as cash in the sum of 3.7 million shillings. At the time of the break in, Prime
Attorneys was representing a well-known businessman, Yusuph Manji.56 Mr Manji and several
accused persons were facing criminal charges for alleged economic sabotage.57 While
news reports indicate that none of the documents stolen belonged to Mr Manji, several
individuals the delegation spoke with were concerned that the break in targeted Prime
Attorneys because of its representation of Mr Manji. The delegation heard that the criminal
case against Mr Manji was potentially in retaliation to a dispute he had with the government
of Tanzania. The charges against Mr Manji and his co-accused were dropped after the
Director of Public Prosecutions entered a certificate of nolle prosequi.58 On 19 September,
the press reported that several suspects had been arrested in connection with the break
in but, due to ongoing investigations, the police were unable to reveal further details.59
Similar to the incident involving IMMMA Advocates, several interviewees expressed concern
that Prime Attorneys may have been targeted because of its representation of a client with
adverse interests to the government.

54 See ‘“Bulldozing” the media’ Reporters Without Borders, available at [Link]

55 ‘Tanzania: Suspected bandits raid office block hosting Manji’s attorneys’ The Citizen (12 September 2017), available at [Link]/
News/Tanzania--Suspected-bandits-raid-office-block-hosti/1840340-4092210-cyemk4/[Link].
56 Ibid.
57 ‘Case against Manji, 3 co-accused dropped’ Daily News (15 September 2017), available at [Link]
case-against-manji-3-co-accused-dropped.
58 Ibid.
59 ‘Tanzania: Police Arrest Five in Connection to the Raid of Manji’s Lawyers’ Office’ [Link] (19 September 2017), available at http://
[Link]/stories/[Link].

APRIL 2018   WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA 21
 (c) In addition to the attacks on IMMMA Advocates and Prime Attorneys, the delegation also
heard reports of the bombing of the law offices of advocate Said Omar Shaaban, who is
current President of the Zanzibar Bar, on 7 April 2016.60 The perpetrators of the attack have
not been apprehended.61

(d) The delegation also heard of lawyers being arrested for attending to clients who were being
investigated or had been arrested by the police. This was in conjunction with statements
made by the President to arrest lawyers representing unsavoury clients.

(e) On 7 September 2017, Mr Lissu was shot in Dodoma. As of the date of this report, the
investigation into that shooting was still pending, with no arrests. The delegation also
heard of the previous murders of two lawyers, Professor Jwani Mwaikusa and Dr Sengondo
Mvungi. Although the murders happened a few years ago, these still resonate within the
profession. Also mentioned was the disappearance of a lawyer named Philbert Patrick
Gwagilo, who is still missing.62

52. While in Tanzania, the organisations heard differing views and opinions about the likely
perpetrators of these attacks and the likely reasons for them. Some individuals with whom
the organisations spoke believed that the attacks were a manifestation of the government’s
increasing hostility towards lawyers. They interpreted the attack on IMMMA Advocates as a
form of ‘reprisal’ for that firm’s participation in a case that went against the government’s
interests (see above). The organisations heard from several individuals that the attack on Mr
Lissu was effectively a warning to the TLS, of which he was the President. Others with whom
the organisations met believe that Mr Lissu was shot due to his political activism (Mr Lissu was
a prominent member of CHADEMA for some time) and not in connection with his activities as
President of the TLS.

53. While the organisations do not have enough information to come to any firm conclusions on
the motives behind the physical attacks on the lawyers and the law firms, the organisations
understand that, save for the arrests in relation to the bombing of Prime Advocates, there
have been no other arrests or significant developments reported and the investigations
remain pending.

54. The organisations requested the government’s response to the concerns raised regarding the
standstill in the investigations, but no response was received.

Relevant regional and international standards

55. Article 2 of the International Covenant on Civil and Political Rights (ICCPR) provides for the
right to an effective remedy when one’s rights are violated. Further, states have the obligation to
protect the right to life. In order to ensure protection of this right and to facilitate access to an
effective remedy, states must ensure prompt and effective investigations are carried out into cases

60 Tanganyika Law Society, Letter to the Chief Justice of Tanzania, 28 August 2017.
61 According to the Letter by the Law Society, no report or updates of the investigations have been made public.
62 Ibid. According to the individuals that the organisations spoke to, the perpetrators of these acts have not been apprehended, nor have the
police made public the status of the investigations.

22 WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA   APRIL 2018
 of murder or attempted murder. Failure of authorities to investigate such attacks constitutes a
failure of the state’s international and national human rights obligations.

56. Article 7(1)(a) of the African Charter on Human and Peoples’ Rights (the ‘African Charter’)
provides that every individual shall have the right to have his cause heard, including ‘a right
to an appeal to competent national organs against acts of violating his fundamental rights as
recognised and guaranteed by convictions, laws, regulations and customs in force’. The African
Commission on Human and Peoples’ Rights (the ‘African Commission’) has noted that Article 7
of the African Charter is not limited to the protection of rights of arrested and detained persons
but encompasses the rights of every individual to access the relevant judicial bodies competent to
have their causes heard and be granted adequate relief.63

57. The right to protection against intimidation, retaliation and reprisals is an integral component
of victims’ right to redress and a condition precedent to obtaining justice in the African
Commission’s General Comment on the Right to Redress for Victims of Torture and Other
Cruel, Inhuman or Degrading Punishment or Treatment.64

58. The African Commission has urged states to protect human rights defenders, including
lawyers who undertake human rights work, in its Resolution on the Situation of Human Rights
Defenders in Africa.65 The Resolution calls on states to provide human rights defenders with a
conducive environment to be able to carry out their activities without fear of acts of violence,
threat, intimidation, reprisal, discrimination, oppression and harassment from state and
non-state actors.66

The organisations’ observations

59. While the delegation was not able to conclude on the motives of the attacks, it was very evident
to the delegation that, as a result of these incidents, there exists a climate of fear among lawyers
in Tanzania, and a belief that their physical integrity may be at risk if they take on incidents
adverse to, or that otherwise appear to challenge, government policy.

60. In the delegation’s view, violent attacks on members of the legal profession that are aimed at
intimidating them from performing their duties, or otherwise harassing them, are reprehensible.
Lawyers must never be associated with their client’s causes. It is imperative that the government
acts urgently to investigate the incidents that have taken place already, to publicise the findings
and bring perpetrators to justice. The government should also make a public statement
condemning these attacks and providing a commitment to the protection of lawyers regardless of
their identity or political affiliations, or the identity of their clients. These incidents have fuelled
a regrettable perception by some lawyers working in Tanzania that the government is openly

63 African Commission, Zimbabwe Human Rights NGO Forum v Zimbabwe, Communication 245/02, para 213. The African Commission held
further that ‘where the competent authorities put obstacles on the way which prevent victims from accessing the competent tribunals, they
would be held liable’. See African Commission, Sudan human rights organisation & Centre on Housing Rights and Evictions (COHRE) v
Sudan, Communications 279/03 and 296/05, para 181.
64 African Commission, General Comment No 4 on the African Charter on Human and Peoples’ Rights: The Right to Redress for Victims of
Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5), available at [Link]/files/instruments/
general-comment-right-to-redress/achpr_general_comment_no._4_english.pdf.
65 ACHPR/Res. 376 (LX) 2017, available at [Link]/sessions/60th/resolutions/376.
66 Ibid, Recommendation 2.

APRIL 2018   WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA 23
 hostile to the TLS and the wider legal community; positive steps by the government would do
much to counter that perception.

D. Freedom of expression for lawyers

Background

61. Prior to Mr Lissu’s shooting, he was facing several criminal charges including sedition. On
20 July 2017, Mr Lissu was arrested at the Julius Nyerere International Airport on his way to
Kigali, Rwanda, where he was to attend a summit held by the EALS. Mr Lissu was charged with
insulting President Magufuli for comments he made three days prior, where he likened President
Magufuli to a ‘dictator’.67 Police authorities said that Mr Lissu was arrested for ‘making anti-
government speeches that could lead to unrest’.68

62. In another case, Mr Lissu was charged with sedition after publishing a 2016 article titled
‘Machafuko yaja Zanzibar’ (roughly translated as ‘Chaos is Coming to Zanzibar’).69

63. In March 2017, the Director of Public Prosecutions (DPP) issued a nolle prosequi to terminate a
previous sedition case against Mr Lissu, where the state alleged that Mr Lissu had, at a public
rally, stated that ‘all Zanzibar presidents were handpicked in Tanganyika and residents of the
islands have no voice on who should lead them’. After dropping the prior charges, the DPP
then rearrested Mr Lissu the following day under new sedition charges for allegedly saying that
‘what happened during the 2015 elections in Zanzibar was akin to offering Muslims pork’.
On 22 August 2017, Mr Lissu was charged with several counts relating to false public
statements against the President.

64. The open cases against Mr Lissu have been temporarily suspended as he still out of the country
receiving medical treatment from the serious injuries he suffered during the shooting.

Relevant regional and international standards

65. Tanzania’s Constitution provides that ‘[e]very person has a freedom, to freely and peaceably
assemble, associate and cooperate with other persons, and for that purpose, express views
publicly and to form and join with associates or organizations formed for purposes of preserving
or furthering his beliefs or interests or any other interests’.70

66. The right to freedom of expression is protected by both the ICCPR and the African (Banjul)
Charter on Human and Peoples’ Rights, to which Tanzania is a State Party.

67 At the press conference on 17 July, Mr Lissu accused President Magufuli of building ‘a system based on favoritism, nepotism, tribalism and
regionalism’ and called on the international community to cut aid to President Magufuli’s administration in order to compel respect for
principles of democracy, rule of law and human rights in Tanzania.
68 ‘Defiant Lissu says ready to pay high price’ The Citizen (28 July 2017), available at [Link]/News/Defiant-Lissu-says-ready-to-pay-
high-price/1840340-4035206-1glw1az/[Link].
69 ‘Tanzania: Court Threatens Cancellation of Tundu’s Bail in Seditious Trial’ [Link] (21 September 2016), available at [Link]
com/stories/[Link].
70 United Republic of Tanzania Constitution, chapter one, part III, section 20(1) (2005), available at [Link]
constitution-%[Link].

24 WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA   APRIL 2018
67. The UN Basic Principles on the Role of Lawyers provide that lawyers, like other citizens, ‘are
entitled to freedom of expression, belief, association and assembly’ and that they ‘have the right
to take part in public discussion of matters concerning the law, the administration of justice and
the promotion and protection of human rights’.71

The organisations’ observations

68. The delegation is concerned that the criminal cases brought against Mr Lissu, which were
directly in response to his public criticism of the government of Tanzania and President
Magufuli, violate his fundamental right to freedom of expression. Freedom of expression,
particularly on matters of public interest, is not only a basic individual right but necessary to
a free and just society. The UN Human Rights Committee has succinctly explained: ‘Freedom
of expression is a necessary condition for the realization of the principles of transparency and
accountability that are, in turn, essential for the promotion and protection of human rights.’72

69. The importance of freedom of expression in a democratic society cannot be overemphasised,

particularly in conversations of public interest and public figures in the political domain.73
Respect for freedom of expression leads to greater public transparency and accountability,
as well as to good governance and the strengthening of democracy.74 The value of public
debate, especially concerning figures in the political domain, is thus very high. The African
Commission has explained that ‘[a] higher degree of tolerance is expected when it is a
political speech and an even higher threshold is required when it is directed towards the
government and government officials’.75

The delegation urges the government of Tanzania to drop all criminal charges against Mr Lissu
that relate to his criticism of the government. Tanzania must also respect, protect and promote
the right to freedom of expression for all citizens, which includes revising restrictive legislation
such as the Cybercrimes Act and the Media Services Act, 2016 to ensure they do not violate the
right to freedom of expression.

E. Access to legal advice and representation by members of the public

Background

70. Many of the issues identified in this report are relevant to the question of whether the Tanzanian
public has proper access to legal advice, as well as the extent to which Tanzanian lawyers
habitually observe their own laws and codes of ethics. The delegation met several impressive
lawyers in Tanzania who were evidently honest, talented and hard-working. Some of them

71 UN Basic Principles on the Role of Lawyers, Principle 23.

72 UN Human Rights Committee, General Comment No 34: Article 19 Freedom of Opinion and Expression.
73 See also Zeljko Bodrozic v Serbia and Montenegro, UN Human Rights Committee 1180/2003, para 7.2, UN Doc A/61/40, Vol II, at 288 (HRC
2005), available at [Link]/hrc/eng/decisions/2005.10.31_Bodrozic_v_Serbia_and_Montenegro.htm.
74 African Commission on Human and Peoples’ Rights, Declaration of Principles on Freedom of Expression in Africa of 2002, ACHPR/Res.62
(XXXII) 02.
75 Kenneth Good v Botswana, Communication No 313/05, 28th ACHPR AAR Annex (Nov 2009–May 2010).

APRIL 2018   WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA 25
 reported having to work long hours and in difficult conditions. The delegation was encouraged
by the self-evident contributions of these individuals to the administration of justice in Tanzania.

71. However, it was made clear to the delegation by a number of interviewees that some lawyers in
Tanzania, as is true in every country, do not always observe the high professional and ethical
standards that are required of the profession. The delegation was told repeatedly that many lawyers
do not respect codes of conduct applicable to them, and that the TLS has failed to properly
discipline or censure them when such codes are breached. The delegation heard from several
people with whom it met that this was a key area of the legal profession requiring improvement.

72. Another concern raised was the impact of intimidation and harassment against lawyers. The
delegation heard evidence from several individuals that criminal sanctions, or temporary
detention, have recently been used by the authorities as a form of retribution or intimidation
against lawyers who represent clients with interests against those of the government. Several
individuals with whom the delegation met reported instances of intimidation of lawyers by
police. These varied in their seriousness. The delegation heard, for example, that lawyers
are frequently verbally abused by police officers and hassled before they are allowed to see
detained clients. More troublingly, the delegation was informed by several interviewees that at
least one lawyer had to endure temporary detention at a police station when attempting to visit
a client held there.

Relevant regional and international standards

73. Guidance on the right to a fair trial and the right to be represented by counsel of one’s own
choosing are provided in a number of texts including the Constitution of Tanzania.76 Particularly
relevant to Tanzania are the ICCPR, African Charter, UN Basic Principles on the Role of Lawyers,
Principles on Legal Aid and the Principles on Fair Trial in Africa.77 These provide for, among
other things, equality of arms before an impartial tribunal and the right to be represented by a
qualified legal representative at all stages of proceedings.78 Applicable parts of guidelines and
standards are set out below under the relevant sub-headings.

74. The right of access to justice and to legal representation is enshrined in the ICCPR79 and the
African Charter.80 Access to the legal profession must be universal, without discrimination
on any basis.81 To that end, governments and professional bodies are required to ensure that
lawyers are adequately trained in the law of the jurisdiction in which they practise and that
they are ‘made aware of the ideals and ethical duties’ of their profession.82 Lawyers’ training

76 See Constitution of the Republic of Tanzania, Section 13(6)(a), which reads: ‘when the rights and duties of any person are being determined
by the court or any other agency, that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the
decision of the court or of the other agency concerned’.
77 Principles on Fair Trial in Africa, adopted in 2001, available at [Link]/files/instruments/principles-guidelines-right-fair-trial/achpr33_
guide_fair_trial_legal_assistance_2003_eng.pdf.
78 Principles on Fair Trial in Africa, Articles 2–5.
79 Article 14.
80 Article 7.
81 UN Basic Principles on the Role of Lawyers, Articles 1–2.
82 UN Basic Principles on the Role of Lawyers, Article 9; see also Principles on Fair Trial in Africa, Principle I. Independence of Lawyers, (a).

26 WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA   APRIL 2018
 should include information on human rights recognised domestically and recognised by
international law.83

75. In giving legal advice and representation, lawyers are expected to behave as ‘essential agents of
the administration of justice’.84 They are expected to act in the best interests of their client, to
‘uphold human rights and fundamental freedoms’ and to assist clients before courts, tribunals
or administrative authorities.85 In doing so, lawyers should ‘exercise independent, unbiased
professional judgment’ and ‘maintain the highest standards of honesty, integrity and fairness’.86

76. In order to allow lawyers to discharge their functions, governments must ensure that lawyers:

(a) are able to perform all of their professional functions without intimidation, hindrance,
harassment or improper interference;

(b) are able to travel and to consult with their clients freely both within their own country and
abroad; and

(c) do not suffer, and are not threatened with, prosecution or administrative, economic or
other sanctions for any action taken in accordance with recognised professional duties,
standards and ethics.87

77. Where an individual faces criminal proceedings, further protections should be applied to their
right to consult with legal counsel. They should, for example, be given access to a lawyer, in a
private setting, within 48 hours of arrest or detention whether or not they have been charged.88

Relevant provisions of Tanzanian law

78. The Tanzanian Constitution enshrines the basic principles underpinning the right to a fair trial
at Article 13(6), though it does not make express reference to the right of individuals to access
legal advice and representation.89

79. The TLS Act gives the TLS specific statutory responsibility ‘to represent, protect and assist
members of the legal profession in Tanzania as regards conditions of practice and otherwise’
and ‘to protect and assist the public in Tanzania in all matters touching, ancillary or incidental
to the law’.90

80. Lawyers in Tanzania are required to abide by the code of conduct of the TLS. The disciplinary
process for lawyers who breach their ethical and professional obligations is governed by
provisions in the TLS Act, the Advocates Act and the Advocates (disciplinary and other

83 Ibid.
84 UN Basic Principles on the Role of Lawyers, Article 12.
85 UN Basic Principles on the Role of Lawyers, Articles 12–14. Similar provisions are in the Principles on Fair Trial in Africa, Principle I.
Independence of Lawyers.
86 IBA International Principles on Conduct for the Legal Profession, Principles 1–2.
87 UN Basic Principles on the Role of Lawyers, Article 16; Principles on Fair Trial in Africa, Principle I. Independence of Lawyers, (b); and
Principle 12, section 36 of the Principles on Legal Aid.
88 UN Basic Principles on the Role of Lawyers, Article 7; see also Article 14 (3) (b), which requires clients have adequate time and facilities to
communicate with their counsel and Principles on Fair Trial in Africa, Principle 3.
89 Constitution of Tanzania, Article 6.
90 TLS Act, section 4.

APRIL 2018   WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA 27
 proceedings) Rules 1955. As stated above, these laws provide for two potential means by which
lawyers may be disciplined in Tanzania:

(a) Discipline via the courts. The Advocates Act provides an express power to the Chief Justice and
judges of the High Court to deal directly with misconduct by lawyers.91 Judges are permitted
to admonish lawyers for misconduct and suspend them from practice; the Chief Justice
may ‘for any reasonable cause’ admonish advocates, suspend them and/or make an order
removing their name from the roll.92

(b) Discipline via the Advocates Committee. As stated above, the Advocates Committee has the
power to determine complaints of misconduct made against advocates and applications for
the removal of an advocate’s name from the roll.93 It further has broad powers of censure
against advocates, including suspension of an advocate for a temporary period.94

The organisations’ observations

81. The delegation considers the numerous concerns from individuals interviewed of frequent
misconduct by lawyers to be troubling. They are also disappointed at reports that the present
framework for the disciplining of lawyers – which, on paper (as set out above), is seemingly
sound – is not fully enforced. The delegation urges all relevant parties to take action to ensure
that lawyers uphold, and are held to, the highest standards of professionalism and ethical
conduct, and that the system for disciplining lawyers who breach professional standards is
properly implemented.

82. Specifically, the delegation encourages the TLS and other relevant organisations to take robust
steps to ensure that the system for disciplining lawyers who fall short of professional and ethical
standards is effective and properly enforced in practice, in line with international standards. It
is clear to the delegation that the perception of a lack of disciplining of lawyers has undermined
public confidence in the quality and independence of lawyers in Tanzania.

83. The delegation also considers it imperative that the government investigate reports regarding
members of the police impeding the ability of lawyers to have access to their clients. This is an
extremely concerning hindrance both to the rights of the accused – who should be entitled to
legal advice and representation regardless of their identity – and to the independence of the
legal profession.

91 Advocates Act, section 22.

92 Advocates Act, section 22(2).
93 Advocates Act, section 13.
94 Advocates Act, section 13(4).

28 WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA   APRIL 2018
Conclusion

It is an established principle that the independence of the legal profession plays an important role in
safeguarding the rule of law and the protection of fundamental human rights. The ability of lawyers
to represent clients is essential to maintaining the international norms of equal justice and due
process. The delegation commends the invitation by the Minister of Justice and Constitutional Affairs
of the United Republic of Tanzania, Hon Prof Palamagamba J A M Kabudi, to various stakeholders,
including the TLS, to make submissions with regard to proposed amendments to the laws regulating
the legal profession in Tanzania and acknowledges that there may exist a need to restructure and
improve the regulation of the legal profession in Tanzania, to better meet international best practices.

The delegation, however, is concerned that, because of a deep mutual mistrust between the legal
profession and the executive branch of government, the amendment process and results thereof
threaten to undermine the independence of the profession. Furthermore, the hostile rhetoric and
physical attacks against certain members of the legal profession has had a chilling effect on the
ability of lawyers to represent clients, and heightened the delegation’s concerns not only for the
continued existence of a strong and independent legal profession, but the functioning of a system
guided by the rule of law. The delegation thus urges the Tanzanian government, members of the
legal profession and other stakeholders to work objectively and impartially on strengthening the
legal profession in Tanzania in accordance with recognised regional and international standards.
Furthermore, the delegation strongly urges Tanzania to take immediate steps to respect, protect
and promote the independence of the legal profession, including independently and thoroughly
investigating criminal attacks against lawyers.

APRIL 2018   WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA 29
Annex A

Terms of reference and organisation representatives

1. This report has been prepared following a fact-finding mission to Tanzania in October 2017
by a delegation of representatives from six organisations: the American Bar Association Center
for Human Rights (ABA CHR), the East Africa Law Society (EALS), the International Bar
Association’s Human Rights Institute (IBAHRI), the International Commission of Jurists (ICJ),
the Pan African Lawyers Union (PALU) and the Southern Africa Development Community
(SADC) Lawyers Association (SADCLA).

1. The mission’s terms of reference were ‘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’.

2. In doing so, the organisations were required to analyse for compliance with international
standards and the promotion of the independence of the legal profession in Tanzania:

(a) the current domestic legal framework, including the Tanganyika Law Society Act95 and the
Advocates Act;96 and

(b) any proposed legislative changes to the legislation affecting the legal profession, including
the Matrix of proposed changes.

3. It was also required to gather information on reported physical and oral attacks on lawyers
and/or law firms and to assess the ability of lawyers to carry out their work without fear or favour,
as well as to exercise the right to freedom of expression, belief, association and assembly.

4. The findings in this report are based primarily on the information gathered during the meetings
held in the course of the organisations’ visit to Tanzania in October 2017. They are also based
on information received in written form either during or after the visit by the organisations.
The organisations attempted to meet with government officials during the fact-finding mission,
but without success. Following the mission, the organisations wrote to relevant state authorities
requesting further information on concerns that arose during the mission. However, no
responses were received from any of the authorities

5. An analysis of applicable domestic and international legal instruments, secondary sources,

including NGO and UN human rights reports, academic articles and media reports was also
undertaken and the report was compiled in accordance with the Lund-London Guidelines.

95 The Tanganyika Law Society Act, chapter 37, available at [Link]

96 The Advocates Act, chapter 341, available at [Link]

30 WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA   APRIL 2018
Organisation representatives

The ABA CHR, IBAHRI, ICJ, EALS, PALU and SADCLA were represented during this mission by
Mooya Lynn Nyaundi, Mark Wassouf, Stella Ndirangu, Hanningtone Amol, Eric Mutua and Stanley
Nyamanhindi, respectively.

Mission Rapporteur

Mark Wassouf was the Mission Rapporteur for this report. He is an English barrister practising at
3 Verulam Buildings in London. He has a broad commercial and public international law practice,
with significant experience acting as counsel in cases and matters involving complex questions of
public international law. Mark has advised governments, NGOs and individuals on sovereign treaty
obligations. He has acted on a number of matters involving questions of pure public international
law, most recently acting as counsel in a complex application to the UN Human Rights Committee
submitted under the First Optional Protocol to the ICCPR.

Mark has served as a delegate for the IBAHRI on previous missions. He was a rapporteur on the
IBAHRI’s report on the independence of the Cambodian judiciary and legal profession, and an
assistant to the rapporteur on the IBAHRI’s report on the independence of the Egyptian judiciary.

Acknowledgements

The ABA CHR, IBAHRI, ICJ, EALS, PALU and SADCLA would like to express their gratitude to all
those who met with the delegation during its mission for their cooperation and hospitality, and to
the staff of the PALU and EALS, who provided invaluable assistance in arranging the meetings and
logistics of the mission.

APRIL 2018   WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA 31
Annex B
Tanganyika Law Society’s opinion on the Ministry of Justice and
Constitutional Affairs’ Proposal in the Commentary showing specific areas
of the proposed law enforcement legislation in the country*

* This is an unofficial translation provided by the ABA CHR. The text has not been edited, save for minor
formatting changes for the purposes of this report.

Introduction

The Tanzanian Law Society recognizes Advocates as Tanzanian Court officials while carrying out
the functions of their work, the Chief Justice of Tanzania is the specific authority that regulates all
registered Advocates, administering their discipline and their rights in carrying out their duties. As
in the case of the Court of First Instance of the Judiciary in the execution of its judicial functions;
in the case of the advocates, the independence of Lawyers must be respected as they carry out
their (Independent Bar). This independence is the basis for the honor that is in line with the Law
enforcement legislation, and all Intellectual Property should comply with these Principles. The High
Court Advisors and Courts under the Supreme Court, except the First Courts, perform a function of
lawsuits under the law of the Advocates with the supervision of the Chief Justice.

This system and procedure have been in use in the country since the Law of advocates was initially
introduced, and is consistent with the culture and customs used in the Commonwealth. Theories and
many of the literary texts support the governing concept that this is a system that should be free and
managed by the Courts as Lawyers registered in terms of the Lawyers Act are Court Officials.

Lawyers registered in terms of the Law of Advocates are guided by the Protection of the Judicial Court
while performing the functions of the Advocate, as they are accountable to the Supreme Court and
to the Chief Justice. The existing law gives authority to the Chief Justice to carry out the work. The
bill will be used by the Ministry for commenting; it suggests that there is a tool for registering all the
people working in the law enforcement sector in the country, including lawyers. Since Advocates are
the Judicial Officers as we have stated above, their independence should be protected, as it is now in
order to join the independent legal education bodies from elected leaders and their own members
without interference by other authorities outside of the Parties. In addition, as seen in various
international principles, the (UN Basic Principles on the Role of Lawyers, adopted in 1990), states the
following:

a) you should have an Arm for Human Rights in full and the Independence of the Legal
Profession;

b) the work of lawyers in practice is to defend human rights in their freedom of mind and self-
reliance. And lawyers in independent bodies led by elected leaders and members carry out
the defense that is not under the control of other Authorities; and

32 WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA   APRIL 2018
 c) the legal profession of lawyers: lawyers are required to form and join an independent body
that is responsible for protecting their interests. Their Governing Body should be elected
by the members themselves to perform their duties independently without interference by
other authorities.

Therefore, the proposal to abolish the Law of Advocates, and the Law of the Tanganyika Lawyers Act and
all Law enforcement legislation, does not comply with the constitutional framework of our country as well
international and regional instruments (laws, principles and procedures that our country has agreed with
by signing and incorporating it into part of the laws of our country). Various international and regional
laws require the existence of ‘Independence of the Legal Profession’ and ‘Independence of the Bar’.

References:

a) Article 14(1) of the International Convention on Civil and Political Rights, 1966;

b) Articles 7, 8 and 10 of the African Charter on Human and Peoples Rights, 1985;

c) UN Basic Principles on the Role of Lawyers adopted in 1990;

d) Article 201(1) of the Universal Declaration of Human Rights;

e) Articles 21 and 22 of the International Convention on Civil and Political Rights;

f) Article 8 of the International Convention on Economic, Social and Cultural Rights;

g) Articles 6(d) and 7(2) of the Treaty for the Establishment of the East African Community, 1999;

h) United Nations General Assembly Resolution 40/32 of 29 November 1985;

i) United Nations General Assembly Resolution 40/146 of 13 December 1985;

j) The Human Rights Commission Resolutions 2000/42 of 20 April 2000, 2001/39 of

23 April 2001, 2002/43 of 23 April 2002, 2003/43 of 23 April 2003 and 2004/33
of 19 April 2004;

k) UN Draft Principles on the Independence of the Judiciary, 1981;

l) International Bar Association’s Minimum Standards of the Judicial Independence, 1982;

m) Beijing Basic Principles on the Role of Lawyers, 1990;

n) Bangalore Principles of Judicial Conduct, 2002; and

o) Cairo Declaration on Judicial Independence and Access to Justice of 2004.

So our opinion is that changes in the law of Advocates in some areas are a matter of concern but that
change should not be made in a manner that will discriminate against the control of the Chief Justice
for the Attorneys or in the manner that will make the Association of Lawyers a part of the (Executive)
and to cause this Body to lose its independence as an independent Body of lawyers acting on behalf
of the Chief Justice in accordance with the Act. After this introduction, the Party/Body Comments of
the Attorneys on the Appeals contained in the bill are as follows:

APRIL 2018   WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA 33
 No Name Topic Terms of use

1 TLS Creating a Body known as the With the existing legislation, there are already entities governing the Lawyers.
Registration Board of Lawyers, or These tools are:
the Registrar of Lawyers, managing
• Chief Justice
law enforcement in the country and
• Council of Legal Education (CLE)
enforcing law enforcement bodies by
• Advocates Committee
cooperating with the Chief Justice
• Ethics Committee
• Remuneration Committee

Lawyers as Court Officials should be part of the Court’s independence. That

is why they have a systematic regulatory authority through the Chief Justice.
The procedure is stipulated under Act 341. It is therefore wrong to combine
the control of lawyers under the jurisdiction of the Court and the control of
other lawyers who are not the Judicial Officers. Since such a proposal violates
the concept of independence of the Judiciary and the Independence of the
Bar. In addition, we agree that the importance of enacting Law Enforcement
Law, including approving education, teachers, buildings and (continued Legal
Education) as well as establishing the Council of Legal Education Secretariat
and setting up a budget for running such entities.

2 TLS Addressing the application for The Registrar of Lawyers and the Roll of Advocates is under the supervision
registration and keeping the Register of the Chief Justice under Act 341 of Lawyers. The control of other paralegal
of all persons working in the Legal working in the field of law is under their employment authority. As we have
society said above, it is not appropriate to combine the registration and maintenance
of the Registrar of Lawyers and all other persons working in the legal field.

3 TLS The regulation of public servants The process of regulating public servants is set up in various rules governing
engaging in legal matters of including their service. Public servants who are lawyers registered as Lawyers are not
personal representation in court, licensed to serve as lawyers until they cease to serve as public servants.
oaths and confirmation of various However, there are public servants working as lawyers with the consent of
documents their employers. We suggest that they do so in the work that relates to their
jobs and not otherwise.

4 TLS Provision and cancelation of licenses The License cancelation Authority’s jurisdiction is under the Chief Justice under
in conjunction with the Chief Justice of Act 341 of the law. The proposed procedure contradicts the grounds for
having an independent Bar in the provision of justice made by judicial entities.

5 TLS To receive complaints and conduct There is a procedure for addressing the disciplinary matters of Lawyers by
investigations, deal with lawsuits the Advocates Committee, which appeals to the Supreme Court through the
of lawyers and act in partnership Court of Appeal. In addition to the Tanganyika Law Society there is an internal
with the Chief Justice, and for system for disciplinary action through the Ethics Committee. So we see the
Public Service Lawyers, ministries existing process consistent with the requirements of the grounds for having
and Government institutions in independent instruments of justice. Discipline of other legal practitioners
accordance with the Public Service who are not Lawyers are under their employers and their Employment and
Act. Disciplinary Authorities

6 TLS To Develop, promote, evaluate,

manage, approve, track and evaluate
the implementation of the law that
governs lawyers in the country.

7 TLS Improve legal education by consulting This is the main function of the Council of Legal Education (CLE) although it is
with institutions that deal with the currently not functionally responsible for such factors as non-secretary, human
development of legal education in the resources and financial management. We recommend that the CLE be restored
country and properly implemented so that it can carry out its functions properly. It is
also appropriate, to enact specific laws on legal education issues under the
CLE.

8 TLS Determining fees, contributions, Procedures are contained in the Law of Lawyers, the Law of the Tanganyika
and deductions for the work of Lawyers Association and the Advocates Remuneration Order, 2015. The Chief
the Counselor and the payment Justice and the Governing Body of the Tanganyika Law Society administer fees
procedures of such claims. and Contributions. The Remuneration Committee under the authority of the
Chief Justice administers deductions. This process also reflects consistency with
cultural, and international standards of practice.

34 WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA   APRIL 2018
 No Name Topic Terms of use

9 TLS To conduct an audit in the offices of The procedure exists and we wish it to continue. The Chief Justice examines
the Attorneys to ensure compliance advocates because they are the Judicial Officers in accordance with section
with the requirements of the law 66 of Law 341. This process also reflects consistency with cultural, and
international standards of practice.

10 TLS To collaborate with institutions In the current process, all applications for registration are referred to the Chief
responsible for education issues in Justice who has the authority to verify and certify professional certificates for
verification of legal professionalism advice by the CLE. In this process the Chief Justice collaborates with TCU for
and continuous law education in the lawyers who studied law education abroad.
country.
Since this process reflects consistency with regional, international and cultural
practices, we recommend it continue.

11 TLS To enable people in the law field to Enabling is an important function and should be done by CLE and TLS.
register with national, regional and However CLE has failed to perform this function due to the challenges we
international Bodies described in Part 7 of the bill. We recommend CLE to be restored in order to
perform this function effectively.

12 TLS Addressing regional and international Currently TLS is a member of the regional and International Bar Associations,
consistency issues and providing the International Bar Association, the East African Law Society, the SADC
guidelines on such issues Lawyers Association, the Pan African Lawyers Association and the American
Bar Association. So it can continue to address those issues that concern its
members who are Lawyers.

13 TLS To strike off the roll the names These functions are performed by the Chief Justice as the custodian and
of Advocates in conjunction with the Registrar of the Advisory Board in accordance with Act 341 of the law.
the Chief Justice for the following According to the Law of Advocates, the Advocate can be struck off the
reasons: roll for disciplinary reasons or upon request by the Advocate. The order to
remove the Advocate from the roll is issued by the Advocates Committee after
a) Poisoning the earth;
following the procedure in accordance with the law and then referred to the
b) Failure to perform advocacy
Chief Justice for the removal of the name of the relevant Advocate. So we
functions in the Republic. Because
recommend this process to continue in order to protect the independence of
of the incapability to perform legal
Lawyers.
proceedings for more than five
years;
c) Failure to obtain for over two
years (2) the required accreditation
to continue practicing, and the
reason under paragraphs (b)
and (c) may be repealed if the
participant will apply for the
application and specify the reasons
for the occurrence of the incident
resulting in failure to comply with
the provisions of the law.

14 TLS To set conditions for establishing and The current procedure satisfies the requirements of the law, especially the Law
opening up corporate law firms of Contract Cap. 345 and the Business Names Registration Act. 213. In the
legal procedures and profession, it is not permitted to separate the Council
and its client by using the company shadow. The lawyer is responsible for his
or her actions and can not transfer the responsibility to the company.

15 TLS Promoting law enforcement policies Our proposals are that the existing system continues to exist but should be
in the country including the Act of implemented as recommended. The basis for our opinion is that the current
the Attorney General, the Law of system is consistent with regional and international standards, practices and
Advocates, the Law of the Tanganyika principles. TLS, in the past, prepared a number of proposed amendments
Lawyers Association, the Law of to the law enforcement law in the country and handed it over to the
Officials, the law that governs lawyers government. We will re-submit our recommendations once improvements
and the Law of Court Management. have been made. In addition we recommend the incorporation of a law
enforcement law and (legal education) as we recommend in our opinion
within this Bill.

APRIL 2018   WARNING SHOTS: THREATS TO THE INDEPENDENCE OF THE LEGAL PROFESSION IN TANZANIA 35
International Bar Association
4th Floor, 10 St Bride Street
London EC4A 4AD, United Kingdom
Tel: +44 (0)20 7842 0090
Fax: +44 (0)20 7842 0091
Website: [Link]