Open University Law Journal 2013, Vol. 4, No.

1:221-241

Ethics for practising lawyers in Tanzania: a critical review of

the law and practice

Kevin Mandopi 

“The first thing we do, let us kill all the lawyers”

(William Shakespeare (1564- 1616) in Henry VI)1

“There is street talk circulating around that private

advocacy is a means to easy and quick riches and that privately engaged
lawyers are a fast-talking, money–grabbing lot. The saying by Marcio Puzo
in his book The Godfather has a lot to do with this image when he said ‘A
lawyer with briefcase can steal more than a hundred men with guns.’ To
Don, saying lawyer and robber, are one and the same thing.”2

Abstract

This article discusses the ethical principles of advocates in Tanzania as

provided for by different legal instruments governing legal practice. The
Chief Justice takes opportunity to examine the characters and ethics of the
incoming advocates before their names are entered into the Roll. In doing
this, the Chief Justice is aiming at getting advocates into the Roll who can
abide to ethics of the profession. However, as the number of enrolment per
intake is high it becomes difficult for him to do this work very well and it is
noted that, some of the advocates are spoiled in the course of the practice.
These challenges cause advocates who are practising law to breach the
professional principles such as the principle against champart, touting,
undercutting, advertising, exclusion, coaching of witnesses, honouring the
principle of precedence of advocates, and failure to refrain from corruption
practices. Thus, this article presents these principles with a view of
scrutinising the extent of compliance of the legal ethics by Advocates in
Tanzania in the course of legal practice.

Key words: advocates, ethics, Tanzania, law, practice.


Lecturer-Institute of Judicial Administration Lushoto. Email: [email protected].
1
Cited in Peter, C.M., Human Rights in Tanzania: Selected Cases and Materials, Koln Koppe,
1997, p. 367.
2
Ibid, p. 368.
K. Mandopi

Introduction

Advocate is expected to practice legal profession by abiding to the ethical issues

stipulated in different legal instruments put in place. This is because as an advocate is
an officer of the High Court who is required to practice law subject to the jurisdiction
and conditions thereof.3 But in practice it has been noted that, advocates are not keen
in abiding to ethics of their profession the fact which some of the Advocates are
summoned to appear before the Advocates Committee to answer the allegations of
professional misconduct.

The term ethics simply means: the rules of conduct or behaviour pertaining to a
particular class of human action. On the other hand, ethics relate to moral principles
that control, influence, or guide a person’s conduct or behaviour usually in order to
gain or win respect for himself/herself or profession to which he/she belongs. Ethics
or moral philosophy distinguishes right from wrong and good from bad. Thus,
attempts to answer questions about what conduct or behaviour is acceptable or not
acceptable within the respective profession. Thus, a number of legal instruments are
in place which providing do and don’ts to the advocates to which is required to abide
as explained herein below.

Legal framework for ethical professionalism in Tanzania

A number of legislation in Tanzania controls legal practice. In the course of legal

practice, an advocate is required to comply with conditions stipulated by principal
and subsidiary legislation. Such instruments include: The Advocates Act, Cap. 341
R.E. 2002, The Tanganyika Law Society Act, Cap. 307 R.E. 2002, The Advocates
(Admission and Practising Certificate) Regulations 1955 The Advocates
(Disciplinary and Other Proceedings) Rules 1955 The Advocates (Accounts)
Regulations, The Advocates (Professional Requirements) Regulations, The
Advocates’ Act (Application of Section 3 to the Tanzania Legal Corporation) Order,
The Appointment of Taxing Officers Order, The Advocates’ Remuneration and
Taxation of Costs Rules.4 However, there is also Rules of Professional Conduct and
Etiquette of the Tanganyika Law Society. These laws principally make standards on
the way members of the Bar are required to practice law. Therefore, advocates are
required to abide to all these legal instruments in the course of legal practice.

The Tanganyika Law Society Act, Cap.307, section 7(1) provides that:-

3
Advocates Act, s. 66.
4
Mandopi, K., The Role of Advocates in the Dispensation of Justice, The Tanzania Lawyer, 2013,
Vol.1, No.1, p. 27.
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 Ethics for practising lawyers in Tanzania

Every advocate who has in force a practising certificate shall without election, admission or
appointment, become a member of the Society from the date on which the practising
certificate is issued to him and be subject to any provision of the law for the time being
affecting that member.

According to this provision, it is obvious that, immediately after the advocate has
been admitted into the roll, automatically becomes the member of Tanganyika law
society. An advocate has no right to choose to be a member of Tanganyika Law
Society. Just acquisition of the practising certificate makes an advocate a member to
the society.5 Immediately an advocate becomes a member of the Tanganyika Law
Society is required to abide to the ethical conditions which are proclaimed by
different instruments named above which are under the monitoring of the
Tanganyika Law Society.

Advocates as officers of the court are required among others to abide by to the Rules
of Professional Conduct and Etiquette of Tanganyika Law Society. These rules focus
on the protection of legal practice and profession among advocates, the
circumstances that establishes faith among the clients or any other person expecting
to be served by that professional competence and experience of advocates. The Rules
of Professional Conduct and Etiquette of Tanganyika Law Society are intended to
establish ethical standards and behaviour required of any advocate in Tanzania. Thus,
each advocate is required to practice law in compliance, among others, to this law.
Abiding to these ethical values instils the public confidence in the courts of law.
Further more, the established ethical behaviour of members of the Bar contributes
much to the public acceptability and respectability of advocates and the judicial
system of the country. The people will respect the justice system in case advocates
perform their duties fairly with impartiality by putting much of their mind into the
dispensation of justice.

Advocates have to abide to ethical rules because are the fountain for dispensation of
justice. They should not create interests on the matter they handle but are required
them to be impartial. Impartiality is impaired when an advocate has interest on it.
Interest is created in the matter when the result of the matter will affect the said
advocate. For instance, where an advocate agree to be paid instruction fees
depending on the end result of the matter or the advocate is handling a matter which
relates to his close relative. In abiding to ethics, in such environment the advocate is
required to rescind the legal representation to such person. In case advocate takes
corruption as well, his impartiality becomes impaired. Thus, advocates should not
take bribe so as to trigger his client win the case. Unethical advocate can take money
from his client and corrupt the presiding magistrate or judge so as his client can win
the matter. Sometimes they can even corrupt court clerks to detach very important
exhibits of his opponent part from the court file so as during the determination of the

5
Tanganyika Law Society Act, s.7 (1).
223
K. Mandopi

matter should not be used by the presiding judge or magistrate. This is unethical legal
practice and is not tenable under the law. In other occasion, advocate can collude
with a presiding magistrate to favour his client in the matter. In such circumstances,
the magistrate ignores writing important evidence of the other part and writes weak
evidences and writing only strong evidence of the part of advocate who has corrupted
the court. This is great unethical in legal practice committed by advocate in collusion
with the court. It is also unethical to the advocate who is twisting the true evidence of
the case and tells lies in court to favour his client. Twisting the true evidence of the
case and replacing with lies, it is real goes contrally to the role of hiring such
advocate to appear in court. This makes the court lacking the genuine assistance of
an advocate. Advocate as an officer of the High Court of Tanzania is required to
assist the court by giving to it the true evidence so as the court can deliver the fair
decision among the parties in the matter. Doing contrary to legal ethics is not in
tandem with the aim of having advocate in the Roll and to engaged to represent his
client in court.

The legal ethics instruments including the Rules of Professional Conduct and
Etiquette of the Tanganyika Law Society are the guide for advocates on how to
conduct legal practice and carry out their duties. The instruments require advocates
to observe accountability, commitment, diligence, self-respect and abide by the
system of administration of justice without fear or favour. The instruments go
further, making boundaries on how the advocate should behave and abide to it in and
outside the judicial duties. Advocate should adhere to ethics, and practice law by
maintaining the values of their profession. In case advocates conduct themselves in
accordance with the professional conduct, they will build out the integrity of the
judicial system of the country and go contrally to the words of Shakespeare quoted
above who wants lawyers to be killed for lack of dispensation of justice in court. This
can also make advocates to change from becoming fast-talking, money grabbers, or
thieves as stated above by Marcio Puzo hence become real officers of the court who
are appearing in court to assist the parties in the matter and the court in its process of
dispensation of justice.

However, in order for advocates to abide by these rules of ethics are required first to
be oriented to the rules and then they should use in their course of legal practice. The
main encumbrance prevailing is that members of the Bar in their individual capacity
do not take efforts to read the rules controlling ethics of the legal profession after
they have graduated their programmes. Despite the fact that, these instruments
provide the uniformity of moral principles that control, influence or guide the
conduct and behaviour of advocates in the course of legal practice and enforces
among the advocates the duty to observe high standards of conduct which will lead to
integrity and respect for the advocates profession however, advocates have been
ignoring such instruments. The other obstacle to the compliance with the rules on the
part of the advocates in Tanzania is the controversy put by the court through the case

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 Ethics for practising lawyers in Tanzania

of Mkono and Co. Advocates v J.W. Ladwa (1977) Limited. 6 In this case, Kalegea J
held that, the Rules of Professional Conduct and Etiquette of the Tanganyika Law
Society are unenforceable because the Tanganyika Law Society has no mandate
under the law to legislate subsidiary legislation. The Rules of Professional Conduct
and Etiquette of the Tanganyika Law Society with other instruments including the
Advocates Act are the foundation of legal ethics in Tanzania. The decision in
Mkono’s case deteriorated a lot the efforts of protection of integrity of advocates in
Tanzania by the Tanganyika Law Society through the Advocates Committee. This is
the decision of the court needs to be respected because remained to date
unchallenged, despite this decision was entered in error. The Tanganyika Law
Society like any other organisation cannot fail having its moral power to legislate its
rules which will govern the conduct of its people. Taking this assertion, the author
concurs with Ubena7 and Mtavango8who have taken a different stand based on moral
bases to the fact that, the Rules of Professional Conduct and Etiquette of the
Tanganyika Law Society, still is binding among the advocates because they have
made it through their statutory meetings to govern their conduct and etiquette. This
instrument remains the foundation of ethics to the advocates in Tanzania and in case
of the breach is still punishable to date despite of the decision of the court in
Mkono’s case. Thus, advocates have no choice other than abiding to it with other
ethical legal instruments in the course of legal practice in Tanzania.

Advocate observance of ethical principles

An advocate is required to observe various practising principles provided under the

advocate’s laws. There is in place mechanism under the Chief Justice office to
scrutinise the ethics of incoming advocates before their names are entered into the
roll. The Chief Justice office makes interview to every Petitioner for the purpose of
realization of the characters and the ethics of a petitioner before the enrolment
ceremony. However, where the number of petitioners is big it seems difficult for the
office of the Chief Justice to conduct the exercise successfully.9 In such
circumstances, the Chief Justice may request members of the Bar to supply to his
office opinion of suitability to petitioners to become advocates. For instance, on 4th
December 2010 the Hon. Registrar of the High Court of Tanzania wrote to the
Secretary of Tanganyika Law Society requesting the members of the Bar to give

6
(2002)1EA 145.
7
Ubena, J., ‘ICT and Lawyer’s Advertisement in Tanzania’, The Tanzania Lawyer, 2009, Vol.1,
No.1, p.96.
8
Mtavango, V., ‘The Rule against Advertising for Advocates in Tanzania: A Prompt Need to
Relax’, The Tanzania Lawyer, 2012, Vol.1, No.3, p.58.
9
In 42 ceremony of advocate’s enrolment in Tanzania, a total of 337 of advocates were enrolled.
This it created difficulties in assessing the characters of the petitioners the fact which the Chief
Justice needed assistant from the members of the Bar.
225
K. Mandopi

opinion of suitability of the petitioners for enrolment.10 The direction came from
Hon. Chief Justice of Tanzania. Part of the letter reads:

Before the Petitioners are admitted as Advocates, the Hon. the Chief Justice would like to
have the opinion of members of the Legal Profession as to the Petitioners’ suitability to
admission. You are among those selected to help him in this exercise.

If you have any objection to the admission of any of the Petitioners, please, kindly show on
the relevant column of the form attached herein, and returns the form to me by 16 th
December, 2010. Likewise, if you have no objection, make such indication on the relevant
column. In case of any objection, please give your reasons.

Generally, despite the fact that, the Chief Justice has issued the letter-requesting
advocates to assist him to scrutinise the characters of the incoming new advocates,
still advocates were very slow to give their opinion of the suitability of the petitioners
to the enrolment. This created difficulties to the Chief Justice to determine the
suitability of every incoming advocate taking into account the huge number of
advocates enrolled in a single batch. The failure of advocates to assist the Chief
Justice might be caused by reason that, they do not know the characters of petitioners
expected to be enrolled the fact which created difficulties to advocates to give
opinion of petitioner’s characters. The other reason is a short time provided to
advocates to give their opinion. This is also evidenced by the part of the letter itself
that provides: we regret that due to unavoidable circumstances we have been unable
to make this communication to you earlier. Equally regrettably, it has not been
possible to include the detailed ‘Curriculum Vitae’ of each petitioner.

Despite of the challenges encountered by the office of the Chief Justice on deciding
who should be enrolled as an advocate basing on the character and ethics of an
individual person still when admitted must abide to the principles of ethics of the
profession. These principles include the following:

Principle against champerty

The word ‘champerty’ is a legal term that creates an ethical principle for an advocate.
The principle against champerty is a principle which prohibits an advocate to make
any agreement by which an advocate is retained or employed to prosecute any action,
suit or other contentious proceedings stipulates for payment only in the event of
success of that action, suit or proceeding. This kind of arrangement is ethically
prohibited; this is due to the fact that, advocate will create an interest in the subject
matter and will be interested on the outcome of the decision on the matter. This will
push advocate to take the matter personal and proceed to step into the shoes of his

10
This letter was signed by the Registrar of the High Court of Tanzania with reference No. HCC/A.
50.
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 Ethics for practising lawyers in Tanzania

client. This will make the advocate handling the matter as if it is his own. It is the
ethical standard that, an advocate should have an interest on the matter only to an
extent of instruction fees he has been paid to handle the matter and not otherwise. In
case his instruction fees have not been paid and its payment depends much on the
result of the matter automatically, advocate will create an interest on the result of the
matter. This will make the impartiality of the advocate to be impaired and always
questionable. In such circumstances, the respective advocate is required to disqualify
from handling the matter at hand because he has lost his impartiality to the matter
and he will not be able as an officer of the court to assist the court to reach to the
decision which is fair to both parties. In such occasion, there is the perception that,
the advocate’s ability to carry out his legal practice with integrity, impartiality, and
competence is impaired.

Therefore, receiving an instruction from the client by advocate with a view that,
payment will be made at the future depending of the state of the decision of the
matter is squarely a breach of the ethical principle. The legal practise wants advocate
to be paid the instruction fees during negotiation stage. The advocate who handles
matters of his client without being paid instruction fees during negotiation stage is
breaching the principle against champerty. It is also important to realise that the
advocate is provided with a proper instruction to handle the matter when the client
has paid the instruction fees to advocate. When the instruction fees have been paid it
is the time an advocate is eligible to represent his client in court.

Therefore, it is the requirement of law that advocate cannot make agreement to

handle the matter whereby he will be paid depending on the success of the matter in
court. This kind of instruction is the breach of ethics of the profession. Thus,
advocates are expected to practise law by abiding to the principle against champerty.
But the main challenge emerging in the legal practice is that, as the enrolment of
advocates increases, many incoming advocates are making contracts with their
clients to be paid upon winning the case in order for the new advocates to get
instructions which can assist them to gain their experience and marketing themselves.
Such contracts normally are made in the contravention of the principle against
champerty.

Principle against touting

This is also the principle monitoring legal practice. Touting11 is the use of
intermediaries to bring or attract clients to the advocate. This can be made by telling
lies, with a promise of reducing the instruction fees, promising victory to the matter,

11
The Oxford Advanced Learners Dictionary of Current English, Sixth Edition, Oxford University
Press 2000, define the word ‘tout’ to mean, ‘to try to persuade people that something/ somebody is
important or valuable by praising them.’
227
K. Mandopi

or telling the client that, the matter will take short time on the bases of the
relationship between the Advocate and the expected presiding Judge or Magistrate,
all these good words for the purpose of only winning the client’s interest. Section 47
of the Advocates Act, provides:-

Any person who, on behalf of any advocate, or for his own account, acts as a tout shall be
liable to a fine not exceeding one thousand shillings and to imprisonment for a term not
exceeding six months.

Therefore, the above provision criminalises acts of touting. However, it is important

to point out that, this law does not criminalise an advocate who may be ordering and
placing intermediaries for touting. To date substantial number of advocates are
ordering and placing intermediaries in different places including in court corridors
and near their offices where they are paid some of the amount of money in case
intermediaries makes a successfully touting. However, there are some of the
voluntary intermediaries who when they meet any person in need of legal service
they take him to the advocate who will pay the intermediaries some of the money for
bringing the client. All these are the breach of the principle against touting.

The law further makes an offence for any person who induces or attempts to induce
any client or prospective client of any advocate to cease to be the client of such an
advocate in order to become the client of the advocate whom such person serves as
secretary, clerk, or messenger or in any other capacity. In case it has been proved
that, any person induces the client of the other advocate so as he can be his own
client or the client of the other advocate on proof of it shall be liable to a fine not
exceeding one thousand shillings and to imprisonment for a term not exceeding six
months.12 This law also penalise advocate who is inducing clients of the other
advocate to become his client. The action of an advocate inducing clients of another
advocate so as can become his clients is the professional misconduct under the law in
one hand, and in other hand it is a criminal offence. Prohibiting touting intends to
protect the public from dishonest legal practitioners and their intermediaries. Thus, it
is the duty of the legal practitioners to protect the good name of the profession by
practising law in compliance to the principle against touting.

However, sometimes clients withdraw instructions from their former advocate and
wish to instruct another advocate. In such occasion advocate has to hesitate to receive
such kind of instruction until the respective client has properly withdrawn his
instruction from the former advocate in writing by giving genuine reason for his
withdraw. The letter has to be addressed to the withdrawing advocate and the new
engaged advocate must have a copy which must be addressed to the Presiding
magistrate/judge to the matter in court. It is important that the new engaged advocate
when accepting the instruction he must be provided with a copy of such letter that

12
Advocates Act, s. 48.
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 Ethics for practising lawyers in Tanzania

will form part of the advocate’s client file. The Advocate will submit this letter as a
defence in case there is complain of breach of the principle against touting. Out of
this letter, it is obvious that, the new engaged advocate will e considered that he has
been involved into touting when is brought before the advocates Committee

Principle against undercutting

The Principle against undercutting prohibits charging the advocate’s client below the
required amount as an instruction fee. Undercutting by itself is charging of fees and
remuneration at a rate that is lower than that set out in the Advocates’ Remuneration
and Taxation of Costs Rules. The Rules of Professional Conduct and Etiquette of the
Tanganyika Law Society in rule 5(2) states, ‘no advocate may hold himself out or
allow himself to be held out directly or indirectly and whether or not by name as
being prepared to do professional business at less than the scales laid down by the
Advocates (remuneration) Order for the time being.’

According to rule 5(2), an advocate is expected to be charging his clients according

to the Advocates’ Remuneration and Taxation of Costs Rules 1991. Therefore, low
costing other than the ones provided under the Advocates Remuneration and
Taxation for Costs is a professional misconduct. Advocates are required to charge as
stipulated under Advocates Remuneration and Taxation of Costs Rules.

However, the main challenge to the Advocates’ Remuneration and Taxation of Costs
Rules is that, the remuneration and costing stipulated under the law is out dated. The
remuneration and costs stipulated under the law does not reflect the costs of living at
the prevailing time thus, advocates are ignoring charging in conformity to such law.
Principally, the law is required to be amended so as the charges provided be uplifted
to fit the current costing. But so long as these rules are still valid, doing contrary to it
is the professional misconduct and is directly actionable under the ethical laws.

Principle of exclusion

The principle of Exclusion requires advocate to practice law in isolation to other

professionals. The principle prohibit advocates from forming partnership or even
sharing an office with a non-advocate or working in one office with persons of
different profession. Rule 5(3) of the Rules of Professional Conduct and Etiquette of
the Tanganyika Law Society provides, ‘no advocate may agree to share with any
person not being an Advocate or other duly qualified legal agent practising in another
country his profit costs in respect of any business whether contentious or non
contentious.’

This rule prohibits advocate sharing office and fruits of legal practitioners with non-
lawyers in order to prevent other service of non-legal to be an agent of attracting

229
K. Mandopi

clients to the legal services. However, in practice advocates are sharing offices with
non-legal professionals. Others have established legal firms and take different legal
instructions but still use the same office to attend non-legal instructions. This
professional misconduct is not tenable in legal practice.

Principle against advertising

Advertising is the process of making one service known to the public. Normally, this
is done to make the public and the customers aware on the services offered by the
respect person. According to Twaib, the Advocate Act and the Rules of Professional
Conduct and Etiquette prohibit employing any kind of methods of making ones
service known to the public through the media or such other means referred to as
advertising or self promotion by advocates.13

Thus, through the above assertion, the advocate cannot advertise his services.14 This
prohibition do not recognise as advocacy as a business but is a service as the Chief
Justice once said, ‘...advocates ...have the responsibility of doing justice to people
and not taking this profession as a business.’15

Therefore, this is the position of the law whereby no advocate is allowed to advertise
his legal services. But this principle now is highly violated because advocates are
believing that, legal services is required to be advertised like any other business so as
can survive market scrutiny.16 In this bases advocates advertising through websites,17
magazines, radios, television, and publication of brochures, articles, and books.18
Twaib when writing his book titled The Legal Profession in Tanzania: Law and
Practice challenged a lot the principle against advertising by saying that: “The Rules
against self promotion appears to be outdated and inappropriate for present
circumstances.”19 No doubt that, Twaib is advocating amendment to the law by
allowing advocates to advertise especially on coming trends of East African cross
border legal practice. But the law is remaining a law unless is amended. Thus,
advocates in Tanzania have no option other than abiding to this law until the law
provides otherwise. Continuing breaching is calling out penalties through the
Advocates Committee.

13
Twaib, F., The Legal Profession in Tanzania: The Law and Practice, Law Africa Publishing
House (K) Ltd, Nairobi, 2008, p.270.
14
The Rules of Professional Conduct and Etiquette of the Tanganyika Law, Rules 4 and 5.
15
Mandopi (n4), p. 22.
16
Mandopi, K., Principles of Ethics for Judicial Officers in Tanzania, Vuga Publishing House,
Soni,2010, p. 172.
17
Ubena (n7), p.98.
18
Mtavango (n8), p. 59.
19
Twaib (n13), p.271.
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 Ethics for practising lawyers in Tanzania

Principle of precedence of advocates

It is the long outstanding principle that, legal practitioners recognise the principle of
Precedence of Advocates. The principle of precedence means being given the first
opportunity to address or get the services of the court according to seniority as shown
in the Roll of Advocates. Seniority according to this principle is not the Advocates
age but, being the first advocate than others for his name to be entered into the roll of
Advocate. This seniority entitles an advocate who is senior to the others to be
provided with an opportunity first, for instance, addressing the court. The principle
also allows senior advocate to have the sit and get other services of the court first
than junior advocates. Section 7 of the Tanganyika Law Society Act provides, ‘the
Registrar shall enter upon the Roll the name of every person who is qualified to
practise as an advocate in Tanzania; and the order of entry of such names shall be
according to the precedence of such persons as between themselves.’

The above provision makes it clear that, the Registrar will enter the name of an
Advocate into the roll and the order of entry of such names shall be according to the
precedence of such persons as among themselves. The name of advocate is entered
into the Roll of Advocates during the admission ceremony. Immediately after the
Chief Justice has issued a certificate to the incoming advocate the Registrar requires
Advocate to sign into the Roll of the Advocates besides his name. The Roll of
Advocates has numbers arranged serially. The said number to which advocate has
been admitted into the Roll will be the number throughout the legal practice will be
showing the seniority of the advocate unless is reconciled whereby will have a new
admission number which accordingly will accord seniority. The enrolled advocate
shall take precedence according to their enrolment number among advocates
themselves according to the order of entry of their respective names on the Roll;
Provided that the Attorney-General shall take precedence over all other advocates.20

Therefore, this principle is required to be honoured by all advocates. Honouring the

principle of precedence reveals the professionalism the advocates have to abide to it.
None abiding to this principle is professional misconduct. The main challenge facing
practice today in Tanzania is rapid growth of the number of young advocates in the
Roll of Advocates. This generation is not well honouring the principle of precedence.
This makes them abusing the principle to an extent that the principle lacks its
appreciation in practice. But, also it is difficult to realise who is senior advocate than
the other while advocates are in court. This is because there is not Roll of advocate in
the sanctity of the court for reference. This as well causes difficulties in
implementing this principle unless the Tanganyika Law Society with the
corroboration with the court emphasises the applicability and honouring this
principle in the course of legal practice.

20
Tanganyika Law Society Act, s.8.
231
K. Mandopi

Principle against coaching of witnesses

This principle prohibits advocates to teach their witnesses false evidence that will be
testified in court for the purpose of gaining victory to their case. In legal practice,
witnesses are not required to be coached for the testimonial to be made in court.
According to rule 36(a)(i) of the Rules of Professional Conduct and Etiquette of the
Tanganyika Law Society, ‘no advocate may coach or permit the coaching of any
witnesses in the evidence he will give before any court, tribunal, or arbitrator.’

Coaching of witnesses is professional misconduct. Advocates are not allowed to train

witnesses or to allow any witness to testify in court the testimonial that originates
from coaching. Rule 36(a)(ii) further states, ‘no advocate may call to give evidence
before any court, tribunal or arbitrator a witness who he knows to have been coached
in the evidence he is to give without first informing the court, tribunal or arbitrator of
the full circumstances.’

The law also prohibits advocate to call in court, tribunal or before the arbitrator a
witness who has been coached to testify. When advocate knows that, the witness has
been coached is required to inform the court the full circumstances of coaching made
to the witness who is about to testify. The relevant court, tribunal, or arbitrator will
make the finding whether the respective witness should be allowed to testify or not.

The main question to ask is that, do advocates coach their witnesses in order to
testify in court? The true answer is yes, advocates do coach their witnesses in order
to testify in court. The other question to ask is that, do Advocates having known that
the witness has been coached takes efforts informing the court full circumstances of
the coaching made to the witness who is about to testify so as the relevant court,
tribunal or arbitrator having opportunity to make the finding whether the respective
witness be allowed to testify or not? An answer is that, an advocate does not inform
the court the fact and the extent of coaching which has been done to the witness.
Advocate always is the one coaching witnesses likewise is the one who does not tell
the court the full circumstances of coaching made to the witness who has been called
to testify. This makes clear that, according to the wording of rule 36(a)(i) &(ii) of the
Rules of Professional Conduct and Etiquette of the Tanganyika Law Society, the
advocates are committing double processional misconduct. The first misconduct is
coaching witnesses and the second is failure to inform the court full circumstances of
coaching made to witness who has been called to testify. Coaching witnesses is one
of the great misconduct committed by advocates in legal practice in Tanzania. This is
due to lack of professional honest of advocates who are interested to win the client’s
case in the detriment of the justice. Advocates are officers of the court, by coaching
witnesses impairs their role of assisting the court to reach to the fair decision to the
matter at hand.

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 Ethics for practising lawyers in Tanzania

In practice, advocates are coaching their witnesses to tell false evidence in court with
a view of winning the matter. This always comes in when advocates find that in case
witnesses testifies the truth will fail, in such circumstances advocates are coaching
their witness to testify the untrue version of testimony which there is probable chance
of winning the case. The advocates also coaches witnesses who find to be weak
witness. This kind of coaching is made in the view of creating confidence to the
witness who is about to testify.

It is important to point that, coaching is very unethical. When advocates coach a

witness is abandoning his role of an Officer of the Court because is preparing lies for
the purpose of winning his own court. In such circumstances, the impartiality of the
said Advocate is impaired. Obviously, an Advocate will be stepping into the shoes of
his client and that his impartiality is total impaired. This kind of legal practice to
advocate is against the required behaviour and justice. Advocates must be kin to
avoid such professional misconduct so as not to violate principle against coaching of
witnesses for the purpose of assist the court in dispensing justice.

Principle against acting in a matter you may be a witness

Rule 36(e) of the Rules of Professional Conduct and Etiquette of the Tanganyika
Law Society, prohibit advocate to appear before any court or tribunal in any matter in
which he has reason to believe that he may be required as a witness to give evidence,
whether verbally or by declaration or affidavit. The advocate, who may become a
witness in a matter, has to refrain from taking instruction in that matter. In case he
gets aware that he may be needed as the witness while is already holding the
instruction has to disqualify himself from such matter. Advocate normally, is
required to disqualify himself in the circumstances he represents his client in court
while he has initially acted as notary public or commissioner for oath to either part in
either of the documents of controversy that the attention of the court is called upon to
determine.

In the course of legal practice, it occurs that scrupulous advocate when realised the
competent advocate has been hired by the other opponent part to the case of his client
can present some of the litigation documents of the same case for notary public or for
commissioner for oaths to his opponent advocate. In case the other advocate has
signed these documents warrants the other part to pray to court that, such advocate is
the witness to the matter in hand so that he should disqualify from representing his
client in court as the advocate wishes to call such advocate to become a witness to
the case. It is obvious that, the advocate who has signed the instruments has to
disqualify from matter because may become the witness in case the dispute arises on
the documents. However, the advocate who is tricking his fellow advocate to sign

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documents for the purpose of removing him from representing his client is not
tenable at all. This is because to do that is unprofessionalism.

Principle to act honestly and maintaining good relationship

Advocate is required to act honestly before the court and in maintaining good
relationship to his fellow learned brothers and sisters. Rule 37 of the Rules of
Professional Conduct and Etiquette of the Tanganyika Law Society requires every
advocate to discharge duties honestly to his client, the court, members of the public,
and his fellow profession members.21 Therefore, an advocate has a duty to respect the
court and the fellow advocates during the entire period of legal practice by
maintaining the principle of precedence.

An advocate is always is expected to be honest, and upright in defending interest of

the client to the best of his advocacy skills.22 However, the Advocate should never
allow his personal feelings or those of his clients to affect his duty. They should treat
the court, the lawyer on the other side, and witnesses with courtesy and respect. The
advocate should restrain himself from exchanging his personality with the opposing
advocate but should always address his remarks to the court.23 It is further noted that,
every advocate owes a duty at all times to maintain the honour and dignity of his
profession and to deal honourably, frankly and fairly with all his fellow advocates.24

An advocate who takes the matter into his hands lacks impartiality in the entire
process of handling the said matter. In this circumstance, it is possible for the
advocate quarrelling with the court or his fellow advocate or with the witnesses
called by the other part. The advocate is required to practice law honestly and
maintaining good relationship between the court, fellow lawyers, opponent part to
the matter, and the witnesses who called in court to testify.

Other professional ethical issues

Ability to communicate, impartiality, diligence and learning

A good advocate is able to communicate with litigants and the court through the
language appreciated by the court. The language he uses must be that which the non-
lawyers litigating are possible to understanding. However, he must learn to transform
legal phrases into plain language that can be understood by lay people without

21
Rules of Professional Conduct and Etiquette of the Tanganyika Law Society, Rule 37(1).
22
Ibid, Rule 37(2).
23
Ibid, Rule 37(3)(a).
24
Ibid, Rule 37(4).
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jeopardising the legal soundness of instruction. Ngwala insists that, ‘be open;
communicate clearly, and effectively and in a plain language of the court.’25

Communicating clearly and open is one of the main features of a good advocate.
There is a say by lawyers that; a lawyer is paid in terms of the amount of words he
speaks and the time he spends. In case the saying is true then an advocate is expected
to speak his words clearly, effectively and in a plain language of the court so as to
defend the interest of his client. However, the advocate is expected to be a ‘library’.
In order, the advocate to be a moving library is expected to be reading a lot on issues
of law and making intensive research in the field of law and the case engaged to
handle in court. This will make the law into the finger tips of advocate. Commenting
on the responsibilities of Members of the Bar in learning; Alfred J.D Bona states
that:-

The member of the Bar, therefore, should be man of learning and experience in the laws of
exemplary morals, great patience, coolness, and attention. They should not be distracted by
jarring interest. They should not be dependent upon any man or body of men. 26

Learning creates confidence to the respective advocate and keeps advocate in the
proper position of representing his clients and assisting the court in the process of
dispensation of justice. In case different principles of law and the law itself is within
the fingertips of the advocate, the advocate will make use of it where needed without
depending on asking to any other person. Despite of the saying that, practice makes
perfect however, no legal experience is going to be built without the law being into
the advocate’s fingertips.

Members of the Bar must perform their duties promptly and fairly with enough
degree of impartiality. Lack of impartiality creates conflict of interest. Lord Denning
needs advocates to be impartial in the advocacy dealings when he said that:-

Yes, he (Advocate) must keep his vision unclouded. It is all very well to paint justice blind,
but he (Advocate) does better without a bandage round his (Advocate) eyes. He should be
blind indeed to favour or prejudice, but clear to see which way lays the truth.27

Lord Denning was advocating that, the process of dispensation of justice require
acting blindly, in the sense that, acting without being influenced by any other fact.
An advocate is expected to be firm to the case regardless of the members involved in
the case. Chipeta, argues that ‘do not lose your head if you think the case is an
important one, or if influential men are involved or the best pleaders are engaged.’28

25
Mandopi, K., Judicial Ethics and Practice for Primary Court Magistrates in Tanzania, Vuga
Publishing House, Soni, 2006, p.120.
26
Di Bona A.J. Judges Book, 2nd Edn., New York, Alfred A. Knoff.Inc. 1946, 304.
27
Lord Denning, The Due Process of Law, Aditya Books Private Limited, New Delhi, 1993, 60.
28
Chipeta, B.D., A Magistrate Manual, Tabora TMP,p.244.
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K. Mandopi

Generally, all cases are equally important to the advocate. This is because the
advocate is required to have an interest in the matter only to the tune of the
instruction fees and not otherwise. Therefore, as an advocate being industrious to the
issues of law then he is not required to fear to handle the matter. The advocate is
expected to become men of learning. Lord Denning, M.R, was quite right when he
wrote in his book, ‘the law is a science which requires long study and experience
before a man attains proficiency in it, and the ordinary citizen cannot properly put his
arguments before the judge except with the assistance of a trained lawyer.’29

A trained lawyer is the one who can address the court on the matters of law correctly
in relation to the matter in hand. However, training alone is not enough. An advocate
is required to practice law for a long time so as to acquire proficiency. It is obvious
that, having a degree of law without legal practical experience is not enough within
the legal profession. Hence, the new enrolled advocate requires to be men of learning
so as to put themselves industrious in legal practice.

Corrupt practices

You shall enrol advocates through out your tribes to administer true justice for the people.
You shall not distort justice: you must be impartial; you shall not take a bribe, for a bribe
blinds the eyes of the wise and twists the words even of the just.30

Generally, an advocate is enrolled from our societies for the aim of dispensing
justice. Justice is always dispensed in the environment free from corruption. This is
because corruption blinds the eyes of the wise and twists the true words to false
words. It is undisputable that, advocates are the ones to make the Tanzanian society
free from corruption, and create the faith environment in the judicial system. This
will be possible only when the advocate first adhere to the principle of maintaining
the professional integrity and impartiality.

At this point, it is important to state that, advocates should not involve themselves in
corrupt practices. Corrupting members of the judiciary, a fellow advocate, or other
clients and witnesses of the advocate undermines the rule of law, and affects public
confidence in the judicial system. Chipeta points out that:-

Corruption is a deadly enemy of justice. Corruption can take many faces. It may be
corruption through money, property, or promotion or even sex. Resist it to the utmost. 31

29
Cited in Peter (n1), p. 368.
30
Di Bona (n26), p.299.
31
Chipeta (n28), p.244.
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 Ethics for practising lawyers in Tanzania

Corruption according to Chipeta is declared to be an enemy of justice, the advocates

must fight it. This is due to the fact that, corruption has become one of the major in-
road to quality justice delivery. In case advocates become agents of corruption, the
quality of legal services is going to be very poor. It is however; true that corruption is
existing among advocates and the court. In case, such corruption is left to continue
will devastate the society, advocates, courts, and negatively interrupt the quality of
justice deliverance to the litigants. The interventions against corruption would restore
public confidence in the advocates and the judicial system of the country.

Within the legal practise in Tanzania, corruption has reached endemic proportions.32
Corruption poses a remarkable threat to the rule of law, as well as to the
independence of the Judiciary. Corruption is a conduct or practice that can flagrantly
be done by any person being a civilian or an official including even an advocate, and
this leads to violation of the existing rules, regulations, procedures, and laws for the
purpose of realization of personal or group gains or benefits. This must be urged to
stop for the betterment of the judicial system and the public.

When members of the Bar are put themselves into corrupt practices, among others,
tend to influence judgment and the quality of justice delivery. It is further important
to note that, corruption discriminates the poor from wealthy. Corruption leads into
unfair acquittals or convictions of individuals sometimes-innocent individuals. When
a decision of the court is delivered in abuse of justice, it tends to violate the human
rights to which members of the Bar are responsible to protect.

There are many indicators of corruption in the judicial system. Some of the indicators
are that: Accused who was expected to be convicted is released without conviction;
court records are distorted to pervert justice; Evidences received from investigations
are diverted and distorted and sometimes are fabricated to fit their ends; Innocent
individuals are victimized; the discipline of law and the role of members of the bar
and the judiciary as checks and balances on the other two arms of government are
shaken, and its foundation is destroyed; The nation is torn and broken down as a
consequence of corruption. To curb all these indicators, advocates are expected to
stand firm defending justice and refraining from any kind of malpractice. It can be
remarked that members of the bar should confine themselves only in a proper
conduct to dispensing justice according to law. Members of the Bar are also officers
in our courts where justice is expected to be dispensed. Di Bona has further remarked
that:-

A lost nation is not one that lacks a ruler, but one that lacks rule of law. Distortion of law
does not mean there is no law, it means there is law, but it is not applied. Thus it is as if
there is no law.33

32
The Report of the President Commission of Inquiry against Corruption, November, 1996.
33
Di Bona (n26), p. 302.
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K. Mandopi

In case the advocate count corruption toward the court as the main tool toward his
success, exactly will be distorting fair applicability of law. Corruption deteriorates
the principle of rule of law and in such doing, the country is said to have been lost. In
case is lost then each one is doing what he wants to do because there is no law
controlling the conduct between the people. However, in the critical eye corrupt
advocates might contribute all these problems. It is important for advocates to be
keen in observance of good professional conduct so as to build the judicial system
which is highly respectable in the societies which is free from corruption.

Attire for a member of the bar

Ethics for a member of the Bar include attire. The outlook of the member of the Bar
must reflect the esteem of their offices. A member of the Bar is required to dress
properly when is at his offices, courtroom and when is in his personal dealings. The
member of the Bar has peculiar style of dressing. Ngwala, urges that:-

A Member of the Bar should be well and carefully dressed, at least to the extent of a coat
and a tie. Male member of the Bar must put on a Black or dark blue suit. For female a
blouse and a skirt which are black in colour or rather garments which are dark blue.’34

The member of the Bar must carefully dress. The dress of the members of the Bar is
prescribed according to their gender. Male members must put on a Black or
dark/light blue suit with a tie or with a white rib. It is important to note that, the tie
should not have the loud colour. A member must put on a suit with good black or
dark/light blue shoes and white or light blue shirt. A member of the Bar must
appreciate that, he iron the garments. A female member should dress in blouse and
skirt that are black in colour or rather garments that are dark/light blue. Her shirt
must be white or blue in colour. The shoes should be black or dark blue. This is the
kind of attire for members of the Bar to dress in courts and their offices. However, in
old days, the system of Judiciary insisted a member of the Bar to dress in a dark
three-piece suit. A member of the Bar also was encouraged to have clear and ironed
handkerchief in their pockets for male and handbags for female respectively. The
member of the Bar also ought not to put on a loud tie and should brush their shoes.
While in court, a member of the Bar should make sure that, his /her hair is clean and
tidy. The member of the Bar is expected to dress advocate’s gowns especially when
the matter is in open court. The gowns also should be black in colour or rather
garments that are dark/light blue. It is important to point that, the professional legal
dress goes with the gender. Therefore, it is obvious awkward to find violation of
these professional dresses. For instance, it is violation to find a woman lawyer
dressing the male dress likewise it is untenable to find a male lawyer dressing the

34
Mandopi (n16), pp.150 – 151.
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 Ethics for practising lawyers in Tanzania

female legal entire in court. Dressing contrally to what is professional requires is not
modernity but is unethical within the profession to which members of the Bar must
rectify.

Disciplinary mechanism

As provided above, the advocate is required to abide to all the ethics, principles, and
the condition of legal practice. The advocate who has contravened ethics of the legal
profession is brought before the Advocates Committee established under section 4 of
the Advocates Act to answer the allegation.35 This committee is formed by the
following persons: A Judge of the High Court of the United Republic of Tanzania
nominated by the Chief Justice who will be the chairperson; the Attorney-General,
or the Deputy Attorney-General or Director of Public Prosecutions; a practising
advocate nominated by the Council of the Law Society. Two members of the
Committee, one of whom shall be the Attorney-General or the Deputy Attorney-
General, and the Director of Public Prosecutions shall form a quorum. A majority of
votes of the members present decides the decision of the proceedings. In case there is
equality of votes, the chairperson of the meeting has a casting vote.36

The Advocates Committee among others have power to hear and determine any
allegation of misconduct made against any advocate by any person.37 The Committee
will give an opportunity to the advocate an opportunity to be heard to answer the
allegation. In this occasion the Committee may hear such witnesses and receive such
documentary evidence as in its opinion may assist it in coming to a conclusion as to
the truth or otherwise of any allegation made against the advocate.38 In the
circumstances, the Advocates Committee has found that, the allegation of
misconduct tabled before it is proved against the respective advocate may direct
either of the following: That the name of the advocate be removed from the Roll;
Admonish the advocate; or suspend the advocate from practising for such period as
the Committee deems fit.39 The Committee also may impose an order to cost as it
deems fit that will be executed in like manner, as the order has entered by the High
Court.40

The decision of the Advocate Committee is very authoritative. Where there is any
advocate aggrieved by any decision or order of the Committee has to appeal to the

35
The Advocates Committee is establishment by the Advocates Act, through Acts Nos. 39 of 1969
s. 3; 22 of 1983.
36
Advocates Act, s. 4(5).
37
Ibid, s.5 (1).
38
Ibid, s.5 (3).
39
Twaib (n13), p. 296.
40
Advocates Act, s. 5(5).
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K. Mandopi

High Court against such decision or order within thirty days of the decision.41 A full
bench of the High Court composed of not less than three Judges shall hear this
appeal.42 In the course of the proceedings, the High Court is mandated to exercise all
the powers conferred upon the High Court by the Civil Procedure Code.

Therefore, the Advocates Committee is very powerful organ established by law to

determine matters of misconduct against advocates. This Committee aiming at
making advocates perform their legal duties honestly without involving into any
circumstances of misconduct with a view of assisting the court dispensing justice to
people who are knocking the door of the court for justice.

Conclusion

Legal practice by itself is a profession. Advocates are expected to practice law in

compliance to the professional ethics. Professional ethics include abiding to the
principle against champerty, touting, undercutting, advertising, and exclusion. The
Advocate also is required to respect the principles of precedence, against coaching of
witnesses, and not handling the matter of interest to the advocate himself. The
corruption is the major enemy in legal practice which advocate is required to avoid.
Corruption denies justice to person especial the poor and uneducated persons.
Involvement in corruption among advocates and the court deteriorates the main goal
of establishing the judicial system which is intended for the purpose of dispensing
justice equally to the people. In order to avoid corruption practices, advocate is
required to be honestly to the law, the court, and his fellow opponent advocate and
witness. An advocate is not required to practice law in contravention of the law itself.
Contravention of law is one of the great professional misconduct. This kind of
misconduct if is left to continue, the judiciary will not be the organ of dispensing
justice. People goes to court looking for justice in case justice is not provided people
will hold justice to their hands. Andyarujina, posits that ‘justice is a consumer
product and must therefore meet the test of confidence, reliability, and dependability
like any other product if it is to survive the market scrutiny. It exists for the citizenry
‘at whose service only the system of justice must work.’43

It is important to take note that, advocate with lack of legal professional ethics is a
great enemy in legal profession. It is worried today that, substantial number of new
advocates enrolled to date are young in age and ethically might be poor. This can
deteriorate the reputation of legal practice in Tanzania. In such circumstances efforts
is required to be taken for the purpose of training these new advocates who enrolled
nowadays ethical issues before embarks themselves into full legal practice. It is

41
Ibid, s. 24A (1).
42
Ibid, s. 24A (4).
43
Dilweg, V and Fretz D.R., Modern Judicial Ethics, American Bar Association, Nevada, 1992,
p.130.
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undisputable fact that, initial enrolled advocates were ethically firm compared to the
advocates enrolled nowadays. However, as the mechanisms of controlling ethics are
getting challenges due to the increase of number of advocates who are enrolled per a
time. In such circumstances, efforts must be taken to train new advocates and
rememorize the first enrolled advocates in ethical legal issues. This is due to the
reason that, it has been generally noted that, advocates does not fully abide to
professional legal practice in Tanzania whereby the Advocates Committee and the
Tanganyika Law Society has a long way to go to eradicate professional misconduct.
In case such condition is left to continue, exactly Tanzania is going to be a nation
without law because people will be taking justice into their own hands.

241