Keynote address by Paul Mwangi, an advocate of the High Court of Kenya and the author of “The Black Bar” to members of the Uganda Law Society on X Space on the topic “The fallacy of Neutrality and non-partisanship in the Uganda Law Society”.
I can only properly speak about Kenya as i have not studied the development of the legal profession in other African countries. In Kenya, we did not build on any indigenous advocacy institutions to get a legal profession. In fact, we cannot talk of an indigenous African advocacy institution since none existed. There was advocacy in cases involving minors or other persons lacking legal capacity but in almost all other cases, adult persons had to present their cases to adjudicating authorities for themselves.
What we know as the legal profession in our country is what we adopted from the colonial society that was established in our country. Basically, it was a foreign British institution developed by a foreign British society and imported to a colonial British country.
This legal profession that was developed by the British was not brought to our societies to serve Africans. It came to serve a colonial society that was established by the British. It was therefore in this respect, alien to our society. The assumptions on which this institution had been developed in England were therefore also alien to our societies.
The pioneering members of the legal profession in Kenya were therefor British. We Africans were invited to join the profession not to serve our people but to serve the colonial system and the Colonial British society. Our people had no commercial interests and no personal, economic or political rights in the colonial system that would have required representation.
Over time, we Africans kept joining the profession and took over its management without ever asking ourselves whether we had become an indigenous institution or we were still the colonial institution. This is where issues of relevance of the profession to independent African societies came up.
In countries that may have a different experience regarding how the legal profession has developed in their society, this question of relevance presents itself in different perspectives. There would be countries where the legal profession has grown during colonialism as a representative of the rights of the people during colonialism but the profession quickly became irrelevant in an independent country because it did not interrogate what role it was required to play after independence,
The question each legal profession faced after independence is one of relevance: who was it meant to serve after the people became free from colonialism ? The question looks simple but it is complex.
In the independent African States, there were only two legal and political sides which the legal profession could serve. The first is the State itself.
By the state, I mean the governance institutions of the independent country as distinguished from the people. In this respect, this would be the presidency, the judiciary, parliament, the military etc. Representation of this side of the divide entailed the expansion of the latitude of power to enable these nascent institutions make policies and implement them in the discharge of their mandate to govern.
The other side was the people. Representing the people entailed the expansion of personal and political liberties to the extent necessary for the people to realize the full benefit of both their humanity and their sovereignty. This meant that the legal profession would strive to ensure the protection of fundamental human rights and the establishment of good governance as the paramount issues in the independent African State.
Can the legal profession be neutral in the circumstances where the interests of these two sides come into conflict as is prevailing in our African societies today?
My position in my “The Black Bar” is that we cannot be neutral if we, as a profession, want to be relevant to our people and their aspiration. To be relevant to our peoples, we have to play a role in the development of our country. In the realities of our respective countries, this role cannot entail the expansion of the latitude of power for the State because our common experience is that this expansion is always injurious to the rights of our people. It results in the abuse of human rights and bad governance. We the people experience this as extra judicial killings, detention without trial, denial of due process and the protection of the law, corruption, lack of accountability, life presidencies, political oligarchy, the arrogance of power and so forth.
The unfortunate reality of our countries is that representing our people means activism against the state. The struggle to secure human rights and establish good governance in Africa invariably leads to conflict with the State and its institutions because the State in our continent has become the biggest and often the only threat to human rights and good governance.
But how do we as lawyers take on this role of representing the people in the face of threats from the State. This is not a decision that can be made outside the members of the profession. The members of the legal profession must agree to be relevant to the people in the respective country by representing them to ensure they achieve their aspirations. Not every member of the profession will be of similar thinking but a majority of the members must be of the same mind.
This consensus is always best reflected by the persons that the legal community elects as its leadership. If the lawyers elect persons who are active in advocating for human rights and good governance, then it is safe to state that the profession has chosen the side of the people.
This is what happened in Kenya was in the beginning of the 1990’s. There was a lot of friction about whether the legal community should take an activist stand against the State. The profession membership was torn down the middle between those who felt strongly that we must play a role in helping our people realize their aspirations as human being and as citizens, and those who felt that lawyers should stick to their practices and provide legal services to private citizens in their private business and leave politics to politicians and political parties.
We resolved the issue by electing into office a council of persons who were all activists. The lawyers who supported the State resulted into obtaining injunctions against the activist Council of the Law Society of Kenya but the majority of the membership supported the members of the Council and we found ingenious ways of representing the people without directly defying the courts.
The next question that arises is : To what or to whom should the legal profession be partisan to ? This is where it can get tricky particularly if you are operating under a competitive political environment. It is often very clear in such circumstances who of the competing candidates appears more committed to human rights and good governance and there is in such circumstances a temptation to support one candidate against the other. The danger with such partisanship is that it overshadows the issues and elevates men over law and passion over reason. In the contest for political supremacy, pageantry and propaganda become the determining factors in-place of commitment to principles.
Lawyers should be partisan only to the principles and must be ready to fight the State to uphold these principles. If elevating the principles has the effect of exposing political contestants as tyrants or fraudsters, then that is a fringe benefit for the people.
Noting that Uganda is about to hold a general election, there are specific principles that arise in these circumstances. I would like to underline three of these principles:
a) The right to vote for every citizen. Lawyers must fight for universal adult suffrage.
b )The right of every adult citizen to contest for political leadership. This includes the right to campaign.
c )The right to a free and fair electoral process meaning security during voting ,veracity during counting and integrity during declaration of results.
But beyond fighting for these principles, the representation of the people is useless if they do not know what they should be looking for in the elections. In this respect, the lawyer must educate the public about what they should be looking for from the political contest. The lawyer must be a civic educator so that pageantry and propaganda do not become the basis on which political leaders are elected. The aspiration of the people cannot be delivered by show- men and story tellers.
So where should the legal profession in Uganda stand today ? Uganda is where Kenya was in the 1990s. Uganda is at a cross roads. Though a general election is coming up, the challenge for Uganda is way beyond this election. Whether the incumbent wins or not, a political succession is imminent. What direction will this take Uganda ? Have the people of Uganda agreed on a common destiny ? Do they share the same aspirations ? Is anyone crafting the vision of a new Uganda, of a democratic Uganda, of free Ugandans ? This is what the lawyers in Uganda must take up if they want to be relevant to their people.
The challenge of the legal profession in Uganda does not stop there. Are you educating the people on what they are entitled to from their leaders in the new Uganda ? Are you educating them on their rights and the duty of the State to respect those rights ? Have you identified the reforms that have to be carried out in the new Uganda so that the political leaders are accountable to deliver what the people are entitled to and that the State and its institutions observe the tenets of good governance?
It will be a long journey that will transcend this election and many others to come. More than thirty years from when we adopted multi-party politics and more than twenty years since we ended the KANU rule, we Kenyans are still in this struggle. It is not going to be an event. It’s a process and you must be ready for a long struggle.
Therefor, the responsibility the lawyers of Uganda have to their people is humongous and it cannot be discharged until you commonly agree to stand with your people. And as you deliberate, remember when we talk about your people, we are talking about your fathers and mothers, your siblings and your children, your uncles and aunties, your childhood friends and your lovers. Do not abdicate your responsibility to them for a little personal comfort. History is very cruel to the generations of those who betray the aspirations of the people.
