THE East African LAWYER Contents Chief Executive Officer Tito Byenkya

Cross Border The Role of the Legal Realising a Gendered Common Legal Practice Profession in the Regional Market for East Africa 4 Integration Process 9 15 ISSN: 0856-9940Iss IssueueIssue No.15, No.16, No. march- 15, JM U MNayEay 2009 2009 PROFILES THE East African of leading law firms within the EAC Issue No.18 November 2011 LAWYER 18 Special Edition Magazine for the 2011 Annual Conference and General Meeting

Positioning the Legal Profession in the Regional WIN

an IPAD2 and tickets Integration process: to Mombasa or Zanzibar in our Opportunities and Challenges AGM raffle! THE East African LAWYER Contents Chief Executive Officer Tito Byenkya

Editors Brenda Dosio Cross Border Legal Practice Daniel Birungi in an Integrated East African Contributors Community Professor Ben Kiromba Twinomugisha — By Professor Ben Kiromba Twinomugisha Herbert Rubasha 4 Dr. John Eudes Ruhangisa Ruth Kihiu Cross Border Legal Practise in The East African Lawyer is a East Africa: A Civil Law Perspective publication of the East Africa Law Society — By Herbert RUBASHA 7 All correspondence should be sent to: The Editor, East African Lawyer Magazine East Africa Law Society The Role of the Legal Profession Number 64, Haile Selassie Road P.O. Box 6240, Arusha, Tanzania in the Regional Integration Tel: (+255 27) 2503135 Process: A Case of East African Tel/Fax: (+255 27) 2508707 Office Cell (+255 786) 821010 Community Email: [email protected] — By Dr. John Eudes Ruhangisa 9 Web: www.ealawsociety.org

Design & printing by: Realising a Gendered Common Noel Creative Media Ltd Tel: +254-20-2729906/20 Market for East Africa: Gaps and e-mail: [email protected] the Role of the Legal Profession — By Ruth Kihiu The East African Lawyer magazine cannot 15 accept responsibility for safe keeping of unsolicited materials. Unless otherwise agreed, copyright for the material Profiles of leading law firms within published in The East African Lawyer will the EAC: be deemed to be surrendered by the author 18 Tanzania 19 Copyright © November 2011 Kenya 25 The East African Lawyer. All Rights Reserved Rwanda 27 Uganda 29 ISSN: 0856-9940

2 The East African LAWYER Issue No.18, November 2011 REGIONAL INTEGRATION Cross Border Legal Practice in an Integrated East African Community

Introduction By Professor Ben Kiromba Twinomugisha ross-border legal practice Dean, School of Law, Makerere University. largely involves an advocate performing legal professional work beyond his or her home state.C An advocate can offer legal services outside his or her country where he or she is licensed to practice. Traditionally, advocates practice law in the country where they completed their legal studies. However, experiences from regions such as the European Union have shown that some partner states towards cross border practice in the host state. It should also be greater regional integration may lead to legal practice. For example under this An- pointed out that though not yet fully insti- greater mobility of advocates. With the nex, only Rwanda and Kenya fully com- tutionalized, cross border legal practice is establishment of the East African Com- mitted themselves to eliminate barriers already taking place in one form or anoth- munity and subsequently the Protocol to cross border legal practice by 2010; er among the partner states. National leg- on the Establishment of the East African Burundi and Uganda’s elimination date islations governing professional legal prac- Common Market (herein after ‘theC om- is 2015, while Tanzania did not commit tice also contain reciprocity clauses, which mon Market Protocol’), there have been itself regarding legal services. Within the may facilitate cross border legal practice. increased calls for freer and easier trade allocated space, this paper briefly exam- As pointed out above, Kenya and Rwanda in goods and services across the region. ines the need for the promotion of cross have opened up. In any case, under the Thus, ideally cross-border legal practice border legal practice in an integrated East Common Market Protocol, partner states implies that advocates in any of the East African Community. guarantee the free movement of persons African partner states can freely practice (article 7), workers (article 10), services in all the five states, namely: Burundi, Justification of Cross Border (article 16) and harmonization and mutual Kenya, Rwanda, Tanzania and Uganda. recognition of academic and professional Partner states would be required to abol- Legal Practice qualifications (article 11). Thus, the skepti- ish all restrictions, which impede or make It should be noted from the outset that like cism and fear to embrace cross border legal it impossible for an advocate to render elsewhere, advocates in East Africa play practice should not arise. legal services beyond his/her home state. an increasingly important role in business However, albeit the partner states support transactions, some of which involve more What Form May Cross the free movement of goods, workers and than one partner state. Cross border legal Border Legal Practice Take? services, some are rather cautious and practice has real benefits for both advocates Cross border legal practice may take the may seek to maintain their sovereignty and the public, especially business persons. following forms: in some of these issues. Consequently, in- With cross border legal practice, advocates struments such as the East African Com- are able to follow their clients who are Temporary provision of legal services munity Common Market (Free Move- transacting business in another partner across boundaries. This might even ment of Workers) Regulations, Annex state. Advocates with special expertise are include having permission to appear II (November 2009) regulate the entry, able to apply it further afield. Clients can in court in the host country with the stay, and exit of workers. TheE ast African choose who they want to represent them, oversight/supervision of a local advo- Common Market (Schedule of Commit- where ever they are. Courts can also ben- cate. For example, a Ugandan lawyer, ments on the Progressive Liberalization efit from the expertise of senior advocates say, could go to Rwanda for a specific of Services), Annex V also illustrates the from other jurisdictions who appear before case and appear in the Rwandan court cautious and skeptical attitude among them thus helping to improve the quality of with court approval;

The East African LAWYER Issue No.18, November 2011 3 REGIONAL INTEGRATION

Acting as a “legal consultant” on foreign Arbitration work. For example a law- There are different political systems; law. For example a Rwandan advocate yer from any East African partner Language problem; goes to Kenya to serve as a consultant state is permitted to represent any cli- on a short-term basis; ent before an arbitration tribunal in Different legal systems (common law and civil law); Establishment of a “foreign law” prac- any other partner state. tice in the host country. For example Limited resources; a Ugandan advocate sets up a firm in Challenges of Attaining Nationalistic tendencies which may Rwanda to among others, advise vari- Cross Border Legal Practice breed protectionism of the different ous stake holders such as the members A lthough cross border legal practice is in- legal markets; and evitable within an integrated East African of the business community that may Disparities in the Bar Associations. want to invest in Uganda on Ugandan Community, there are some challenges, law; which include the following but are not How do you protect the practice of insurmountable: experienced advocates versus the Entering a partnership with a law firm young ones? in the host country. For example, a Having different rolls of advocates in Burundian law firm, a Tanzanian law each partner state; How do you address competition; firm, and a Rwandan law firm joining Weak regulatory framework at the should lawyers be required to team forces. In so doing, mergers and acqui- national levels thereby making it dif- up in a country? sitions would easily be enhanced and ficult but not impossible to develop the process eased; one at the regional level; Strategies for Achieving Becoming a member of the host coun- Advocates play different roles in each Cross Border Legal Practice try bar either through an examination of the partner states; In spite of the challenges outlined above, or through reciprocity (“mutual recog- There are different regulatory systems several strategies may be applied to achieve nition”); for legal practice in the partner states; cross border legal practice in the integrated

4 The East African LAWYER Issue No.18, November 2011 REGIONAL INTEGRATION

E ast African Community. Some of these conformity assessment criteria. Accord- strategies include: ing to Article 11 of the Common Market Harmonizing legal training and cur- Protocol, the partner states undertook ricula in the partner states; to ‘mutually recognize the academic and professional qualifications granted, Encouraging practicing advocates to Conclusion experience obtained, requirements met, acquaint themselves with the laws of licenses or certificates granted in other each partner state. This is because the ith the Common partner states’ (Article 11 (1) (a)). The practice of law essentially requires Market Protocol in implementation of article 11 is to be in precise knowledge of national law. Na- accordance with Annexes to be conclud- place, cross-border tional Bar Associations could incorpo- legalW practice is inevitable. How- ed by the partner states. rate the study of major national legal Some commentators, including le- ever, its implementation should frameworks in the continuing legal gal practitioners in the region have ar- education curriculum for advocates. be systematic and in a phased gued that in order to promote cross bor- manner. It is also important to Sensitization of all stakeholders such der legal practice, there is a need to have note that implementation of cross as the Chief Justices, Law Reform MRAs in place. To this end, the DraftE ast border practice has to be done Commissions, members of the dif- African Community Common Market ferent national Parliaments at both (Mutual Recognition of Academic and together with harmonization of regional and national levels, advo- Professional Qualifications)R egulations legal training and curricula in cates in all the partner states and the 2011 have been prepared. Regulation 7 the partner states. There is a need general public on the benefits of cross obliges Partner States to designate com- for sensitization of various stake- border legal practice; petent authorities to enter into MRAs to holders on the benefits of cross Amend national Advocates’ practice facilitate free movement of professionals border legal practice. Without laws, regulations and administrative in accordance with commitments made provisions to allow cross border legal under the Protocol. The Regulations underestimating the importance practice; contain frameworks for registration of of MRAs, my view is that an EAC Develop a law that creates a homo- professionals and disciplinary measures. Advocates legislation is crucial for geneous legal basis that could be ap- Other commentators are of the view that the implementation of cross bor- plied directly in all partner states; there is a need for an East African Leg- der legal practice in the partner islation on Cross Border Legal Practice. Reciprocal or mutual recognition of states. However, the enactment The legislation would provide for regula- practicing certificates, in the short of the legislation is a sensitive run, and introduction of an East Af- tion of cross border legal practice within issue and has political implica- rican practicing certificate in the long the East African Community. The com- tions. Therefore there is a need run; and forting thing is that both approaches are mutually reinforcing and aim at one im- for extensive consultations and Harmonization of statutory and ad- portant objective: the promotion of cross ministrative requirements in the sensitization so that the legisla- border legal practice in the region. partner states. tion can be owned by all the stake It should be noted that according to holders and thus be effectively the DraftR egulations, MRAs are entered Mutual Recognition into by ‘competent authorities’ (Bar As- implemented without opposi- Agreement (MRA) or East sociations?). They are contractual under- tion. It is possible to have a single African Legislation on Cross takings, which are governed by the terms market for advocates, the chal- Border Legal Practice? of the agreement. Can’t a party to this lenges such as different languages agreement easily pull out of the MRA? and different legal systems, not- A mutual recognition agreement (MRA), What if only two ‘competent authorities’ withstanding. Cross border legal in the context of this paper, is an agree- enter into the MRA? How do you bring ment by which two or more partner the others on board? Space does not per- practice is necessary if we are to states agree to recognize one another’s mit me to fully engage the merits of each take advantage of the opportuni- academic and professional qualifica- approach, but in my view, the East Afri- ties that unfold with the opening tions. The main object of anMRA would can legislation is an appropriate regional up of the East African market for be to promote trade in services among framework to handle various aspects goods and services. end partner states. TheMRA may, among pertaining to legal practice that go be- others, provide for academic and profes- yond the national advocates’ regulatory sional qualifications, registration proce- mechanisms. The debate continues: do dures, competencies, code of conduct we go the MRA way or take the path of and disciplinary procedures and other East African legislation?

The East African LAWYER Issue No.18, November 2011 5 LEGAL PRACTICE Cross Border Legal Practice In East Africa: A Civil Law Perspective

Introduction of subject By Herbert RUBASHA* matter raditionally, lawyers practice law in the country where they completed their legal studies or home State. The organisa- tionT and regulation of the legal profession were developed at a time when legal mat- gal regimes.1 As such, legal profession has ters used to be confined to a single juris- Factual or situational become a priority policy issue that all EAC diction and the familiarity of the attorney analyses Partner States are committed to improv- with that jurisdiction was considered of E ast Africa Law Society (EALS) brings ing and have a conducive environment to exclusive importance. Most lawyers were more than 7,000 lawyers in the region pave way for cross border practice within involved in litigation on the basis local together in contrast to its Partner - the the Community. It is worth noting that, rules. The question raised in this paper Canadian Bar Association (CBA) which a number of initiatives have already been is to what extent the de-territorilisation has over 37,000 lawyers, judges, nota- embarked upon to facilitate cross bor- of law practice in civil law system is actu- ries, professors, students. Particularly, der legal practice in EAC.2 Interestingly, ally being reflected into the organisation Rwanda has around 605 while Burundi this paper will combine an assessment on and the regulation of the legal profession. has around 180 practicing advocates. traditional perspectives of Rwanda and In other words, this paper interrogates to Traditionally, Rwanda and Burundi hail Burundi – as States hailing from the civil what extent the civil law system allows from a civil law background which in law system and appreciate the ongoing lawyers to engage in cross-border law many respects differs from that of oth- legislative attempts at the community level practice. er Partner States (Uganda, Kenya and vis-a-vis the concept of cross border legal This practice though still dominant, Tanzania) that embrace common law practice. is slowly changing in the East Africa Com- system. The two regimes largely differ Thus, this paper presents a resume munity (EAC), as greater economic inte- both in terms of practice and legislation. at its best of a rather topical and complex gration deepens leading to greater mobility Understandably, with the admission of subject matter with an orientation and of lawyers. It is expected that Partner States Rwanda and Burundi in the EAC, efforts focus to civil law system. Particularly, lawyers will benefit from this increased have been made to gradually align with the paper gives a brief factual/situational mobility, as the scope of their practice will sister Partner States through harmoniza- analysis of the subject matter, assesses be expanding since they will be practicing tion of their respective legal systems, for milestones and successes at present, dis- law in any of Partner States in addition to compliance and enhancement of quality cusses challenges and shortcomings and home State where they obtained their pro- legal practice, as well as encourage the makes a conclusion with relevant recom- fessional license. In practice, this mobility formulation of a regulatory framework mendations to the theme. may seem difficult to achieve because it for cross border legal practice.3 necessitates harmonization of legal stan- 1 Jonathan Barsade, the Effect of EC Regulations upon Under the Common Market Proto- dards among countries with different le- the Ability of U.S. Lawyers to Establish a Pan-European col (CMP), cross border practice among Practice, 28 INT’L Law 313, 313 (1994). 2 eAC Treaty and Relevant Protocols and Annexes, such as Partner States envisions gradual abolish- ment of restrictions on the free supply * The author is a practicing Advocate under Rwanda Annex II - EAC Common Market Protocol on Free Move- Bar Association and Managing Partner of Fountain ment of Workers, Regulations, Annex V - EAC Common Law Chambers (FLC). He is also a Law Lecturer at INI- Market Protocol Schedule of Commitments on the 3 The Protocol on the Establishment of the East African LAK, Faculty of Law. Progressive Liberalization of Services and Annex VI on Common Market Protocol, Part D on Free Movement of Mutual Recognition Agreement (MRAs). Persons and Labour – particularly from article 7-12.

6 The East African LAWYER Issue No.18, November 2011 LEGAL PRACTICE of legal services within the community of lawyers from other States on the basis the Rwandan Bar offered to reciprocate in where ultimately goods and services are of other conventions with binding force on the same capacity should any member of traded feely and easily. Currently, Rwanda Rwanda. It is noted that the Rwandan Bar Valedoise Bar apply to practice in Rwanda. has opened to lawyers from Partner States has under this prescription accredited vari- Also, the same consideration was done to albeit conditions stipulated under Annex ous lawyers to practice in local courts upon a lawyer from Cameroonian Bar following V of the CMP.4 In a related context, the Eu- their application to the president of the Bar. acceptance of a Rwandese lawyer to prac- ropean Union (EU) has expressly allowed The Burundi Bar Association also tice in the former’s jurisdiction. This dyna- migrant lawyers to provide legal services embraces the concept of cross border legal mism has set Rwanda apart in its unique in the host State since the adoption of the practice in almost the same way as Rwanda. approach of applying and considering cross Services Directive of 1977.5 This Directive As such also, the basis of accreditation to border legal practice. Particularly, such allows lawyers practising in one member practice in Burundi is both found in leg- flexibility reflects the vitality and adaptabil- State to provide legal services of in another islation and practice. While the legislation ity of Rwandan legal practice chiefly - the member State on a temporary basis. While clearly provides the procedural consider- response to the call of globalization where rendering services in the host State, the ations of pro hac vice admission to legal individuals and companies increasingly lawyer uses the professional title he has practice, the aspect of reciprocity domi- need global legal advice. It also gives anoth- acquired in his home State. In addition, a nates the grounds of accreditation in Bu- er credible perspective of civil law system in lawyer pursuing such activities is bound rundi. This later approach turns to be more our quest to find relevant solutions to con- by the rules of professional conduct of the flexible and commonly used either based temporally challenges. host State, without prejudice to his obliga- on the previous engagement or future com- tions in his home State.6 mitment to the effect of facilitatingB urundi Successes and milestones lawyers upon their application to practice The biggest question on everyone’s mind Applicable Laws and policies in host State. is whether we really have anything to cel- TheEAC Treaty and CMP spells out an As part of pro hac vice admission pre- ebrate about civil law practicing member entry point for cross border practice at requisite by both Rwanda and Burundi States in terms achievements towards real- the community level. Currently, the appli- Bars, foreign lawyers are usually required to ization of the CMP – and particularly cross cable legislation in relation to cross border work in conjunction with a local lawyer. The border legal practice. In the case of Rwanda, practice however varies from State to State. rationale of active involvement of the local it is noted that under the law establishing Traditionally, the custom of legal profes- counsel seems to spin on the fact that they the Bar10, foreign lawyers may render ser- sion practice dictated that a lawyer who are more conversant and familiar with local vices on an ad hoc basis, practice law on a has not been locally admitted to practice laws and practices. Another thinking at- permanent basis under the home State pro- in a particular Partner State may neverthe- tributed to this pre-condition is the unique fessional title and may even become a full less be accepted to participate on “pro hac nature of civil law system which might not member of the profession of the host State vice” basis.7 Both in Burundi and Rwanda, necessarily be the case that the foreign law- if he has effectively and regularly pursued the out-of-State attorney or foreign lawyers yer masters well. While in the EU presup- activities in the host State involving the law would need the permission from the Bar to poses the same conjunction - the extent to and regulations that regulate the Bar.11 practice in local courts. The law establishing which the local lawyer should be involved While the above clearly demonstrates the Bar in Rwanda stipulates that subject to in the case varies from jurisdiction to juris- that Rwanda - as a formerly civil law system any international convention, a lawyer who diction and cost implications9, the Rwandan - has made some interesting strides towards is a member of a Bar of a State other than legislation is silent to that effect. Basing on embracing cross border legal practice, it Rwanda that has provided in its national the practice though, you infer a presupposi- must be recalled that CMP paves the same legislation for reciprocity may provide legal tion that this joint mandate between the two way for free movement of goods, services, services in Rwanda on an occasional basis counsels (the local and foreign) lasts until capital, labour, and people. Consequently, in accordance with Rwandese rules respect- completion of legal proceedings. the benefits attributed range from trade ing the regulation of the profession.8 Ac- The law establishing theR wandan bar opportunities, larger markets, improved cordingly, the law provides for admission further enshrines reciprocity as another competiveness, high returns on investment, 4 Common Market Schedule of Commitment on the Pro- consideration the president of the Bar can larger brokered investments, one single in- gressive Liberalisation of Services, Annex V (In Protocol accredit a foreign lawyer temporal cer- vestor’s visa to be issued for free movement on the Establishment of the East African Community tificate to practice in Rwanda. In one case, in the region to free labour movement in all Common Market – Pg 67). Me. Richard Gisagara, a Rwandan national 5 directive 77/249/ECC of 22 march 1977, to facilitate 10 Ibid. effective exercise by lawyers of freedom to provide ser- successfully applied to join and practice in 11 Currently, a lawyer from Cameroon Bar Association has vices: O.J. [1977] L.78/17. Valedoise Bar of France. The applicant was been admitted in Rwanda Bar Association following a 6 Ibid. successfully considered. It followed that set of procedural and admission tests as provided under 7 Clint Eubanks, Can I practice in Another State? A survey the law establishing Rwandan Bar and the internal rules of State Pro Hac Vice Admission, (2003-2004) 28 J. Legal 9 Tom Zwart, The reflection of cross-border law practice in and regulations of the Bar. An American lawyer was also Prof. 145. the organization and regulation of the legal profession, admitted on the same grounds. The former often prac- 8 Article 6 of the Law No. 03/97 Establishing the Bar in Academic of International Law and Political Sciences tices in Rwanda’s courts just like any other local practic- Rwanda (Official GazetteN o. 08 of 15/04/1997). 2001, (2). ing advocate.

The East African LAWYER Issue No.18, November 2011 7 LEGAL PRACTICE

Partner States among others.12 It is thus ex- dencies, language challenges, protection- Burindi related to cross border legal prac- pected that under such integration and glo- ism, disparities in the Bar Associations, tice seem though impressive as the two sys- balised economy, companies and individu- competition tendencies, unfair market tems have both legislatively and customary als will increasingly need both global and practices to limited resources among oth- embraced the practice. The principle of rec- regional legal advice. Indeed, the potential ers. On a recent note, Partner States with iprocity almost in the entire civil law system clients will certainly want to employ coun- civil law background seem to be quick in seems to be such a decisive benchmark and sels of their choice for economic and effi- adopting relevant protocols and imple- cornerstone for cross border legal practice. ciency reasons. In addition, clients expect menting documents. Particularly, Rwanda TheV aledoise Bar of France has admitted one lawyer to be able to suggest answers emerges to be among the first embracing various foreign lawyers on that basis – in- to questions that may concern several ju- Partner States thereby opening for a vari- cluding a Rwandan lawyer. risdictions. Understandably, law firms will ety of both supply of goods and services. At the EAC level, we note that various follow suit. Therefore, this is likely to in- While Rwanda’s pace and first compliance legislations have been tipped to come into creasingly engage Partner State lawyers in rate is appreciated by some circles as a force and facilitate realization of cross bor- cross border legal practice to offer their cli- positive stride towards integration – and der practice. Annex VI of the CMP is con- ents legal representation. Even then, most therefore deserving the same emulation by sidered as a point of entry for professional of multinational companies prefer to tackle other Partner States, other critiques have bodies to start discussing Mutual Recogni- national legal challenges through their law- expressed deep concern whether Rwanda tion Agreement (MRAs). Indeed, the pro- yers in anticipation of familiarity and qual- will ever be emulated or at less be recip- fessional/regulatory bodies of the East Afri- ity of services rendered. rocated by Partner States. Thus this mis- can legal professions must be at the heart of match posses a fundamental challenge to the development of the MRAs. The success Challenges and Partner States’ future commitment in fear of both the EU and CBA processes was in shortcomings of betrayal and un-proportional returns. no small measure as a result of co-operation The process of integration is an ongoing and agreement between all the professional process with a multitude of challenges that Conclusion and bodies which should inform EAC Partner impede or slow down cross border legal Recommendations States as well. Finally, it is worth noting that practice. This section briefly highlights EAC integration is governed by the pro- challenges that affect different Partner Whether under civil or common law sys- gressive principle, and therefore, it may be States - ranging from nationalistic ten- tem, cross border practice in the EAC Part- helpful to consider the principle of variable 12 The scope for international commercial legal practice in ner States is still at its infancy stage. Still, geometry where some Partner States would the East Africa Community presented at the East African cross border legal practice presents itself as mutually recognise lawyers from Partner Regional Seminar on International Commercial Law or- a Must-Do-Thing if we need to realize the States rather than waiting for Parliamentary ganized by the Pan African Lawyers Union (PALU) - Kigali Serena Hotel, prepared by Mathews Nderi Nduma, Prin- full potentials of integration of the EAC. Acts to enable realisation of full potentials cipal Legal Officer, EAC – the 14th of February 2011. The traditional perspectives ofR wanda and of integration. end

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8 The East African LAWYER Issue No.18, November 2011 LEGAL PROFESSION The Role of the Legal Profession in the Regional Integration Process: A Case of East African Community

Introduction: he East African Community (EAC) Partner States (Repub- lics of Kenya, Uganda, Rwan- By Dr. John Eudes Ruhangisa da, Burundi and TheU nited Registrar, East African Court of Justice RTepublic of Tanzania) have embarked on a process of coming together as individual states within a region into a larger whole. The degree of this integration depends upon the willingness and commit- decision-making institutional order, or a contribution to peace and security in ment of independent sovereign states to combination of both. the region share their sovereignty. TheE ast African Community as a the building of programmes at the regional organisation is structured along regional level Defining Regional these lines. In the East African Com- the strengthening of the region’s inter- Integration munity integration process, like in many action with other regions of the world other regional organisations efforts have R egional integration has been defined as the adherence to law in implement- often focused on removing barriers to an association of states based upon loca- ing the developed programme tion in a given geographical area, for the free trade in the region, increasing the safeguarding or promotion of the par- free movement of people, labour, goods, Relevance of Legal ticipants, an association whose terms are and capital across national borders, re- Profession fixed by a treaty or other arrangements. ducing the possibility of regional armed conflict (for example, through Confi- F or purposes of this paper, I wish to con- It is a worldwide phenomenon of territo- fine the term “legal profession” to rep- rial systems that increase the interactions dence and Security-Building Measures), and adopting cohesive regional stances resent the Lawyers and Judges. These between their components and create are key players especially in the opera- new forms of organisation, co-existing on policy issues, such as the environment, climate change and migration. tionalisation of adherence to law one of with traditional forms of state-led organ- the identified functions to be fulfilled in In my view regional integration ini- isation at the national level.[1] Regional the integration process as Partner States tiatives in East Africa, should fulfill the integration refers to the process by which implement the programmes developed. following important functions: states within a particular region increase Within the East African Community their level of interaction with regard to the strengthening of trade integra- framework, these concerned have to some economic, security, political, and also so- tion in the region extent been considered and catered for by cial and cultural issues. In simple terms, the creation of an appropriate en- the Treaty through creation of the East regional integration is a process in which abling environment for private sector African Court of Justice.1 Apart from the states enter into a regional agreement in development creation of the Court, very little has been order to enhance regional cooperation the development of programmes in done by the policy organs of the Com- through regional institutions and rules. support of economic growth and re- munity to strengthen the East African The objectives of the agreement could gional integration Court of Justice as an important organ in range from economic to political, al- the development of strong public the integration process. There is no doubt though it has generally become a politi- that the Court has a big role to play in the cal economy initiative where commer- sector institutions and good governance; integration process particularly in settling cial purposes are the means to achieve disputes that arise out this relationship. broader socio-political and security ob- the reduction of social exclusion and jectives. It could be organized either on the development of an inclusive civil 1 See Article 9(1)(e) of the Treaty for the Establishment a supranational or an intergovernmental society of the East African Community

The East African LAWYER Issue No.18, November 2011 9 LEGAL PROFESSION

The East African Court of Justice in col- C ommunity. In doing so, the Court was risprudence as well as to the integration laboration with the Members of the bar in being assisted by the lawyers represent- process as mandated by the Treaty. the region have effectively performed this ing the parties or coming in as friends of noble function as mandated under the the Court (Amicus Curiae).3 It should be (i) Interpretation role 2 Treaty through judicial pronouncements noted that advocates are also officers of In interpreting the laws, courts play an as shown hereunder: the Court forming part and parcel of the important role complementing that of justice process. legislators in as far as they give clear and Development of Regional The Court has discharged its obliga- detailed explanations of the content of jurisprudence tion under the Treaty and contributed laws. The judicial interpretation of the While the legislative and executive or- to the EAC integration process through community laws assists the policy mak- gans are working towards the creation of adjudication of disputes as its core func- ers to have a common understanding of enabling environment for the political in- tion. As at end of September 2011 the these laws as they take informed deci- tegration to be a reality by enacting com- Court had rendered 14 Judgments, 29 sions during the implementation stages. munity laws and adopting policies of the rulings and one advisory opinion there- TheE ast African Court of Justice has ac- implementation of these laws, the judicial by contributing directly and significantly tively played this role as can be deduced organ of the Community has played the to the Community law and regional ju- from its jurisprudence. crucial role of interpreting the Treaty and In the first ever case brought before 3 In Reference No. 1 of 2005, Callist Andrew Mwatela and other Community laws and in ensuring Two Others v. Secretary General and Others, and , Refer- the EACJ, Callist Andrew Mwatella & 2 respect for the founding principles of the ence No. 1 of 2006, Prof Peter Anyang’ Nyong’o & others others vs. EAC. Reference No. 1 of 2005, vs. AG of Kenya & 5 Others, The East Africa Law Society the applicants challenged the legality of 2 Article 23 of the Treaty provides that the Court shall be (EALS), and the Bar Associations of Kenya Uganda and the actions of the Council of Ministers a judicial body which shall ensure the adherence to law Tanganyika, appeared as Amicus Curiae to assist the in the interpretation and application of and compliance Court in providing answers to legal issues that sought and the Secretariat in assuming control with the Treaty to be determined. over Assembly-led Bills. The Council had

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purported to withdraw four private mem- C ommunity Bills. As such, permission of are not Members of the (East African) bers’ Bills from the Assembly. The appli- the Assembly would be required for with- Legislative Assembly is the domain of cation questioned the right of the Council drawal of any Bill. Such approval must be the High Court of Tanzania and not to delay the presentation of the Bills to sought and obtained through a motion this Court.”6 the House. It also challenged the valid- passed by the Assembly. TheC ourt found A nother significant case brought to ity of the meeting of the Sectoral Council that the Bills were already in the Assem- EACJ was Prof Peter Anyang’ Nyong’o & on Legal and Judicial Affairs (the Sectoral bly, so could not be withdrawn by the others vs. AG of Kenya & 5 Others, Refer- Council) held on 13th to 16th September Council of Ministers as purportedly done. ence No. 1 of 2006. The main contention 2005 and the decisions taken by it about All the Council could do was to delay the in this reference was whether Kenya’s pro- Bills pending before the EALA, includ- debate. cess of electing the nine persons deemed ing the recommendation to legalize deci- The Court found on the issue on rela- to be its EALA members and the rules of sions through protocols not Community tionship of the Council and the Assembly Kenya National Assembly for EALA elec- Acts. The application sought an order by on legislation that decisions of the Coun- tions infringed Art. 50 of the EAC Treaty. the Court that the report of the Sectoral cil even on policy issues have no place in TheEAC J considered the possible Council meeting held on 13th to 16th Sep- areas of jurisdiction of the Summit, Court meanings of the expression “the Nation- tember 2005 was null and void ab initio and the Assembly (Art. 14 (3) (c) & Art. al Assembly ‘shall elect’ ” (Art. 50), and and enjoined court to find that all deci- 16). It held that the Assembly is a creature found it can only mean “shall choose by sions, directives and actions contained in of the Treaty like the other Organs of the vote” taking the ordinary meaning of the or based on it were null and void. Community and its competence is only phrase, reference to ‘democratic election TheC ourt found that the Sectoral on matters conferred upon it by the Treaty of persons to political office’ as under- Council on Legal and Judicial affairs was as with all Community organs. In this re- stood to mean election by voting. Further, not constituted per Treaty, in particular gard, the Assembly could only legislate on that this interpretation of the meaning of Art. 14 which provides that the Council of matters on which the Partner States had ‘elect’ is borne out by the practice in each Ministers shall ‘establish from among its surrendered sovereignty to the EAC. partner states of electing the Speaker and members’ only Sectoral Councils and that By interpreting these Articles of the Deputy in the National Assembly through Sectoral Council members are restricted to Treaty, the Court dutifully discharged its voting. In all Partner States, the National ‘ministers’ as defined by the Treaty. C ourt functions under the Treaty and provided Assembly executes the function of elect- found that Kenya and Tanzania were rep- guidance for future operations of the af- ing Speaker & Deputy Speaker by voting resented by non-ministers (including At- fairs of the Community by its organs. in one form or another, and the extent of torneys General) at the disputed meeting Without fear or favour the Court boldly discretion of the National Assemblies is to THE of 13th to 16th September 2005, therefore told the Ministers and Attorneys General determine what procedure should be ap- GRAND VILLA the meeting was not properly constituted that they had overstepped their bound- plied for the voting. The Court held that HOTEL NewBagamoyo Road, Kijitonyama - PO Box: 14103 - Dar es Salaam and did not amount to a lawful Sectoral aries and that was not acceptable in any the bottom line for compliance with Ar- TANZANIA Tel.: +255 222 774 774 / 5 / 6 - Fax: +255 222 774 770 Council meeting. In this regard, its deci- democratic institution. However, having ticle 50 of the Treaty is that the decision to www.thegrandvillahotel.com Cell: +255 784 167 700 - e-mail: [email protected] sion regarding the two Bills was ipso facto made that finding, in order not to crip- elect is a decision of and by the National invalid. However, the Court employed a ple the activities of the Community, the Assembly not another caucus. prospective annulment principle as op- Court invoked in the doctrine of prospec- Finally, on whether the Kenya rules Welcome to The Grand Villa Hotel posed to retrospective annulment in order tive annulment. complied with Art. 50, it held that the not to take the community back to square In the case of Christopher Mtikila v. election rules partially comply with Arti- one on matters that such improperly con- The Attorney General of the United Repub- cle 50 in so far as they provide for propor- The Grand Villa has opened in January 2009 for you.A new, urban and stituted meeting had already decided ear- lic of Tanzania and the Secretary General tional representation of political parties. 5 cosmopolitan Hotel in Dar Es Salaam. Made for those who are seeking a lier on. It was this particular decision of the of the East African Community , the appli- However, there was a significant degree of Court that led to the amendment of the cant was contending that the East African non-compliance in the failure to provide new style of understanding, living and feeling the city. Treaty thereby validating participation of Court of Justice had jurisdiction to hear for gender and other special interests rep- Attorneys General in such Sectoral Coun- cases involving questions as to member- The Grand Villa redefines accommodation and offers a product of resentation. The major deviation found in cil for Legal and Judicial Affairs.4 ship of the East African Legislative Assem- the Kenya rules was the non-provision for maximum quality and comfort. We pride ourselves with passion for On another issue the Court found bly under Article 52 (1) of the EAC Treaty. election: TheC ourt held that the election hospitality and commitment, focusing on you, satisfaction, consistency, that under Art. 59 (1) any Member of the TheC ourt did not feel shy to state it clearly rules and actual process was the antithesis atmosphere and service with a smile. Assembly may introduce a Bill. Council that it had no jurisdiction over the matter of an election, as the rules ‘deemed’ the does not have exclusive legislative initia- that the complainant had presented to it. nine elected in order to circumvent the Our rooms are of high quality and air conditioned; equipped with tive to introduce Bills in the Assembly. It Giving more precise meaning to the pro- express Treaty provision. Satellite TV, free wireless Internet access, hot water system, bath robes, held that the Assembly owns all Bills once viso to Article 52 (1), the Court held that: in the Assembly, whether they came ini- “the declaration that two persons refrigerator, pure drinking water, coffee/tea maker sets, hair dryers, etc…. 6 Christopher Mtikila v. The Attorney General of the United tially by way of private members Bills or were improperly elected and that they Republic of Tanzania and the Secretary General of the East Our foreign exchange bureau is open round the clock. African Community, Reference No. 2 of 2007, p. 12 (Un- 4 See Article 3 (c) of the Treaty 5 Reference No. 2 of 2007 reported) Because you inspires us, we pride ourselves with passion for offering you hospitality with a plus... The East African LAWYER Issue No.18, November 2011 11 LEGAL PROFESSION

(ii) Respect for founding ferred upon it any time by the Council of moved from that office for misconduct or principles of the Community Ministers. inability to perform the functions of the A s mentioned earlier, the EAC has ad- However, the wideness of the Court’s office for any reason, or the judge resigns opted fundamental and operational jurisdiction and access to it as provided from that office following allegations of principles that govern the achievement for under the Treaty are not enough to misconduct… or a judge is convicted of of the objectives of the Community7. The make the Court the forum through which an offence under any law in force in a EACJ through judicial pronouncements disputes within the region are settled. The Partner State involving dishonesty, fraud has played the role of ensuring that these Court needs to build users’ confidence in or moral turpitude’.16 It is noted that in principles are followed by the differ- its justice through fair and impartial deci- these scenarios there is no requirement ent stakeholders of the Community. In sions. It has included in its rules of pro- for the Summit to refer the question of the East African Law Society and 4 Others cedure a requirement for the parties to Judge’s removal from office to an ad hoc v. Attorney General of Kenya and Others8, explore first the possibility for reaching tribunal. It appears from the foregoing the Court held that failure to carry out settlement out of court before the matter interventions that the security of tenure consultation outside the Summit, Coun- can be fixed for hearing. This is normally for EACJ Judges was seriously put at risk cil and the Secretariat was inconsistent done during scheduling conference.12 by creation of automatic consequences. However, this unfortunate reaction of the with a principle of the Treaty and there- (iv) Independence fore constituted an infringement of the Summit did not deter the Judges from A regional court like any other court has Treaty. Katabazi’s Case9 is another such acting impartially and independently as it to be independent in its performance of examples. transpired in the subsequent decisions of its functions if it is to win confidence of the Court. Arguably this makes the EACJ its stakeholders. TheE ast African Court (iii) Peaceful settlement of an exemplary model of the Court that has so far proved to be an independent disputes stands to propel the integration process and impartial body. However, It has ex- The functionalist approach to integra- as provided for in the EAC Treaty. Indeed perienced and survived what can be tion departs from the assumption that Judges are committed to do justice with- termed as apparent intimidation while violence and power become obsolete as a out fear or favour as required by their ju- discharging its noble duty as the Temple means by which to achieve ends and as- dicial oath. pirations.10 It claims that group conflict is of Justice. This can be ably demonstrated In my view Article 26 of the Treaty not inherent in humans once they real- by what transpired soon after delivery of as amended be should be reconsidered. ize that everyone shares common social one ruling on a matter that was before the The article proposed for reconsidera- goals and values.11 Court. In their joint Communiqué of the tion is the provision that if a Judge of The establishment of courts of jus- 8th Summit, being a reaction to the Court’s the Court, who also holds judicial or tice within regional groupings follows ruling and temporary injunction in Any- other public office in a PartnerS tate, is from this approach to integration and ang’ Nyong’o case the EAC Heads of State removed or, as the case may be, resigns therefore always responds to the need for directed, among other things: following allegations of, misconduct or a mechanism of peaceful settlement of “that the procedure for the removal of inability to perform the functions of of- disputes when they occur. Judges from office provided in the Trea- fice for any reason, from the office in the Arguably, in this regard the jurisdic- ty be reviewed with a view to including Partner State, shall ipso facto be removed. tion conferred upon the EACJ is wide all possible reasons for removal other 13 There is no doubt that this provision enough to enable the peoples of East Af- than those provided in the Treaty.” will become redundant when the Judges rica to access the justice mechanism put and that of the Court cease to work on ad hoc ba- in place by the EAC Treaty. It was men- “a special Summit be convened very sis. However, as long as the provision re- tioned earlier that the Court’s jurisdiction soon to consider and to pronounce mains in play, it has the potential of caus- includes, advisory and arbitral jurisdiction itself on the proposed amendments of 14 ing disparity in the standards applicable and any such jurisdiction that may be con- the Treaty in this regard.” to Judges of the Court from the different 7 These principles as articulated under Articles 6 and 7 Within fourteen days the Treaty was Partner States, unless and until the na- of the treaty includes: peaceful settlement of disputes, surreptitiously amended accordingly. Adherence to the principles of democracy, the rule of tional laws and standards of the Partner Among the said Treaty amendments, as law, promotion and protection of human and peoples’ States governing the removal and resig- rights among other things. said earlier, was one concerning removal nation of Judges from office are synchro- 8 Reference No 3 of 2007 of Judges from office.15 This included a 9 Reference No 1 of 2007 nized.17 In the reference challenging the 10 J. L. Kent “Effectiveness of the European Court of situation where a ‘judge who holds judi- Justice and its role in the Process of Integration”, paper cial or public office in a PartnerS tate is re- 16 See Article 26 (1) (b) (c) (d) Ibid presented at the Second International Conference 17 See Mulenga J.N “The Role , Function and Structure of on “The Challenges of a New European Architecture: 12 See Rule 53 of the EACJ Rules of Procedure. the East African Court of justice in a Common Market Implications for the European Community’s Internal 13 Joint Communiqué of the 8th Summit of EAC Heads of Integration Phase”, A Paper Presented during The Work- and External Agendas”, 22-24 May 1991, George Mason State, 30 November 2006, Arusha, Tanzania, p. 12. shop on Institutional Reforms for the Establishment of University, Fairfax, Virginia, pp 6-7. 14 Ibid. an Effective Common market, Held at Sheraton Hotel, 11 Ibid. 15 See Article 26 of the Treaty Kenya, 26 – 27 January 2009, p. 11.

12 The East African LAWYER Issue No.18, November 2011 LEGAL PROFESSION validity of the 2006/07 amendments to “ For integration to be a valid concept 30 entrenches the people’s right to par- the Treaty, the Court observed:- (…), individuals must be affected by the ticipate in protecting the integrity of the “The introduction of automatic re- policy decisions of the supranational in- Treaty. We think that construing the Trea- moval and suspension on grounds raised stitutions and they must have some input ty as if it permits sporadic amendments at 20 or established in the home State, and ap- into the decision making process.” the whims of officials without any form of plicable to only those in judicial or public In order to get proper answers to consultation with stakeholders would be office, makes possibilities of applying un- the Court’s performance to ensure re- a recipe for regression to the situation la- uniform standards to Judges of the same spect for the principle of democracy, one mented in the preamble of “lack of strong court endanger the integrity of the Court should look also into its jurisprudence in participation of the private sector and as a regional Court”18 this regard. civil society” that led to the collapse of the 21 A dherence to the principles of de- Asked to consider if by reason of fail- previous Community.” mocracy, the rule of law, promotion and ure to carry out wide consultations within protection of human and peoples’ rights Partner States on the proposals for the 21 East Africa Law Society and 4 others v. Attorney General of Kenya and 3 others, Reference No 1 of 2007, p.30 The regional cooperation put in place amendments, the process constituted an (Unreported). This is a case jointly filed and prosecuted under the EAC Treaty is people-centered infringement of the Treaty in any other by the East African Law Society in collaboration with and market driven.19 If democracy means way, the Court found that: the Law Societies of Kenya, Uganda, and Tanzania the rule of the people by the people, and is “It is common knowledge that the challenging the surreptitious amendment of the Treaty one of the fundamental principles of the private sector and civil society participat- on 14 December 2006 without involving the citizens as directed by the Treaty. It is these amendments that EAC, then the EAC working strategy must ed in the negotiations that led to the con- brought about the creation of the Two Divisions of the focus on participation of all social groups clusion of the Treaty among the Partner Court (First Instance and Appellate Divisions) and also from the bottom to the top. As Janet L. States and, as we have just observed, that implemented what the EAC Heads of State directed Kent put it, they continue to participate in the mak- through their Communique that the procedure for the ing of Protocols thereto. Furthermore, as removal of Judges from office provided in the Treaty be 18 See p. 45 of the Judgement of the Court in The East reviewed with a view to including all possible reasons we noted earlier in this judgment, Article African Law Society Case (Unreported) for removal other than those provided in the Treaty. 19 Article 7 (1) (a) of the Treaty, Op cit. 20 J. L. Kent, p 4. See Foot Notes 13 and 15.

The East African LAWYER Issue No.18, November 2011 13 LEGAL PROFESSION

The C ourt went on to conclude that: upheld and enforced by all agencies of the regional integration function. The role to “failure to carry out consultation Government and citizens, the actions of a define and interpret regional legal instru- outside the Summit, Council and the Partner State of Uganda, its agencies and ments rests on the regional Court. For in- Secretariat was inconsistent with a the second respondent were in blatant vio- tegration process to succeed in East Africa principle of the Treaty and therefore lation of the Rule of Law and contrary to there has to exist independent and free sys- constituted an infringement of the the Treaty. tem that will remedy violations and above Treaty (…)”.22 TheC ourt held that the intervention all political willingness of those in power On the question of the role of the by the armed security agents of Uganda to abide by decisions of those given the sa- Court in ensuring that there is respect of to prevent the execution of a lawful Court cred duty of redressing injustices. It is the rule of law at Community level the case of order violated the principle of the rule of vigilance and proactive regional court and James Katabazi and Twenty One Others v. law and consequently contravened the lawyers working in collaboration that can The Secretary General of the East African Treaty. It emphasised that: bring this about. Community and the Attorney General of “…Abiding by the court decision is the From the foregoing examination, it the Republic of Uganda, Reference No. 1 of corner stone of the independence of the is evident that some important stakehold- 2007, is very relevant. In order to appreci- judiciary which is one of the principles ers still do not sufficiently appreciate the ate the issues involved I will give the facts of the observation of the rule of law.” crucial role that has been entrusted to the in detail form. As regards, the principle of promo- Court by the Treaty. TheC ourt should not The story of the claimants is that: tion and protection of human and peoples’ be seen as an opponent to the policy mak- During the last quarter of 2004 they were rights, Janet L. Kent argues that for the ers whenever they are not happy with any charged by the Government of Uganda European Court of Justice (as any other of its rulings. TheC ourt interprets and ap- with treason and misprision of treason and regional court) to be seen as an integrating plies the Treaty provisions for the achieve- consequently they were remanded in cus- institution, it has inter alia to facilitate the ment of the EAC objectives and not for tody. However, on 16th November, 2006, integration process through the recogni- purposes of pleasing any of the interested the High Court granted bail to fourteen tion of the rights of individuals.23 stakeholders. of them. Immediately thereafter theH igh A lthough explicit human rights ju- It is very important that Partner Court was surrounded by security person- risdiction is yet to be conferred upon the States build trust and strengthens the nel who interfered with the preparation of Court, the latter has been courageous EACJ the regional judicial body charged bail documents and the fourteen were re- enough to ensure that basic rights of in- with determination of community dis- arrested and taken back to jail. dividuals are respected. At more than one putes in the region. On 24th November, 2006, all the occasions, the Court has had to consider The discussion in this paper has claimants were taken before a military preliminary objections from defendants shown how the EACJ has performed its General Court Martial and were charged alleging lack of locus standi by individuals functions and the potentialities it has in with offences of unlawful possession of and legal persons. TheC ourt consistently ensuring adherence to the rule of law but firearms and terrorism. Both offences upheld that individuals and legal persons it is not given sufficient jurisdiction and were based on the same facts as the pre- have access to the Court under article 30 in some instances the little jurisdiction vious charges for which they had been of the Treaty,24 which is a basic right to the it has is systematically taken away. The granted bail by the High Court. All claim- regional justice mechanism enabling the Court of Justice of the European Com- ants were again remanded in prison by peoples to “participate in protecting the in- munities for example which, since its in- the General Court Martial. tegrity of the Treaty.”25 ception, has been playing a crucial role The Uganda Law Society went to the in the European integration process has, Constitutional Court of Uganda challeng- Conclusion from January 2000 to November 2009, determined more than four hundred ing the interference of the court process by The discussion on the role of legal profes- (400) cases related to Customs Union the security personnel and also the con- sion in the integration opens new intellec- and Common Market.26 This is what a stitutionality of conducting prosecutions tual space. It provides a concept that allows fully fledged Community Court is ca- simultaneously in civilian and military us to discuss the role of the Lawyers, Part- pable of achieving and the EACJ has the courts. TheC onstitutional Court ruled ner States and other stakeholders have in potential of doing the same. All it needs that the interference was unconstitutional. making the justice system as an aspect of Despite that decision of the Consti- is support from the EAC Policy Organs. tutional Court the complainants were not 23 J. L. Kent, p 2. 24 See Cases Prof. Peter Anyang’ Nyong’o and others v. At- 26 The cases finalized by the Court of First Instance are not included. See data existing at http://ec.europa. released from detention and hence this torney General of Kenya and others; Christopher Mtikila reference with the complaint that since eu/taxation_customs/resources/documents/com- v. The Attorney General of the United Republic of Tanzania mon/infringements/ case_law/List_of_cases_6th_ the rule of law requires that public affairs and the Secretary General of the East African Community VAT_directive_a2_fr.pdf and http://ec.europa.eu/ are conducted in accordance with the law and East Africa Law Society and 4 others v. Attorney Gen- taxation_customs/resources/documents/common/ and decisions of the Court are respected, eral of Kenya and 3 others. infringements/case_law/court_cases_direct_taxa- 25 east Africa Law Society and 4 others v. Attorney General tion_en.pdf both websites accessed on 20 January 22 Ibid, p. 31. of Kenya and 3 Others. 2010. end

14 The East African LAWYER Issue No.18, November 2011 2011 Annual Conference and General Meeting Ngurdoto Mountain Lodge, Arusha, Tanzania 25th to 26th November, 2011 FAC TS TS FACTS FAC

Abouthe EALS 2011the Annual Conference and General Meeting will take place at the Ngurdoto Mountain Lodge in Arusha from the 25th to 26th November 2011, under the theme “Positioning the Legal Profession in the Regional Integration Process – Opportunities and Challenges.” As is customary, Twe have lined up an impressive array of expert presenters and discussants to analyze the topic and guide the discussions. This time round, we have also provided for numerous networking opportunities through gala dinners and other social events and also offer an unprecedented opportunity for EALS members to visit the home of the EALS Secretariat.

Aboutubbed “theArusha Geneva of Africa”, Arusha is home to the headquarters of many Regional and Continental bodies and has served as the venue for the signing of many of Africa’s charters and conventions. Most notable of the institutions that call Arusha home are, The East African CommunityD Secretariat and its attendant bodies such as the East African Court of Justice and the East African Legislative Assembly; The African Court on Human and Peoples Rights; and the International Criminal Tribunal for Rwanda. At one time considered to be the exact centre of the African Continent, Arusha is located at the heart of the Northern tourist Circuit of Tanzania and boasts 4 national parks; the two mountains (Meru and Kilimanjaro) and a plethora of other tourist attractions such as the Ngorongoro crater. Needless to say, Arusha is a nirvana for tourism enthusiasts.

Arusha also boasts of a lively night life with no less than 5 night clubs catering for a variety of music tastes. Many hotels around Arusha also have live bands playing from Thursday to Sunday; in addition to a two theatre cinema complex showing the latest Hollywood and Bollywood movies. Conference delegates could try out Masai camp on Old Moshi road; Triple A night club in Sakina on Nairobi Road; Club AQ in the center of Arusha town and Velocity at Njiro Complex for the party goers.

For Nyama Choma lovers, we recommend, Tembo club in Burka, New AICC club on Old Moshi road, Nicks Pub on Njiro road, and Boogaloo at the Njiro Complex.

Aboutgurdoto Ngurdoto mountain lodge is located Mountain halfway between Kilimanjaro Lodge International Airport and Arusha Town. It is a sprawling 140 acre property featuring among others a 9 hole golf course, Lawn tennis, basketball, and volleyball courts, all perfectly nestled Nbetween Mt. Meru and Mt. Kilimanjaro. The lodge features grandiose architecture with the facilities to accommodate up to 500 guests. Little wonder then that it has been the venue of choice for the last 5 EAC Heads of State meetings.

The East African LAWYER Issue No.18, November 2011 a Transport Accommodation complementary shuttle service will run eing a tourist haven, Arusha is home to a number of hotels between the Arusha town and Ngurdoto ranging from those aimed at the budget traveler to the high mountain lodge for the duration of the end luxury hotels. In all Arusha has hotel room coverage of Aconference. Bapprox 800 rooms although the hotel s accredited to the EALS AC/ AGM have a room coverage of 400 rooms. Delegates are however Buses will be leaving the hotel for Arusha town at requested to book early to avoid disappointment as the date for 5.30pm and 10pm on Friday 25th November; and at the conference coincides with the beginning of the holiday season 2.30pm and 5.00pm on Saturday 26th November. which is marked by many hotel bookings. We have negotiated The buses will leave Arusha town for Ngurdoto preferential rates with the accredited hotels and you can contact Mountain Lodge at 7.30am, 8.15am and 7.00pm them with your details to benefit from the rate. We have also taken on Friday and 7.30am and 8.15am on Saturday the time to rate the hotels and although the unrated hotels may Morning; and for those interested exploring the offer lower rates, EALS cannot vouch for the quality of service Arusha Social life, the buses will be returning to at the hotels in question and delegates are requested to check Ngurdoto from Arusha at 10.00pm, 12.00am and carefully before booking. 2.00am on Friday and Saturday nights. The EALS has negotiated a discounted flat rate of 120US$ bed and The buses will be located at the following breakfast for cottages, chalets and deluxe rooms at the Ngurdoto locations: Mountain Lodge. Delegates who wish to book elsewhere can do  Mount Meru Hotel so with the aid of our accredited hotels list available below. A  AICC roundabout complementary shuttle service will run for the duration of the  Impala Hotel conference and General Meeting between the venue and the other  Snowcrest Hotel. hotels on the accreditation list. We recommend that you reserve and confirm your accommodation arrangements well ahead of time If you wish to travel to or from the Conference to avoid disappointments as November also happens to be peak venue at times other than those indicated above, tourism season in Arusha. private taxis at 30,000Tsh from Ngurdoto to Arusha or Vice versa will be available. Please contact the Conference organizers at the venue for a list and Weather Conditions contacts of recommended taxi cabs. ovember in Arusha is the time for the short rainy Recommended Transport rates for private taxis: season although it is also one of the warmer months of  Town to Ngurdoto and vice versa the year with highs of 28 Degrees Celsius and lows of – 30,000 TShs N19 Degrees. Light summer clothing is appropriate but weather  Airport to Arusha town and vice versa – conditions can change suddenly so delegates are encouraged to 50,000Tshs carry along some items of warm clothing. Karibu Tanzania, Karibu Arusha

Covering all professionals!

Professional indemnity Insurance (protecting professionals against civil liability arising from breach of professional duty) and Directors and Officers insurance (Indemnifies directors and officers for loss arising from claims against them by reason of wrongful act related to their duties).

For further details please contact Daniel Birungi on [email protected] or by phone on +255 684 380 229, +256 782 380 229. You can also contact Maureen Akoth on maureen@ ealawsociety.org or by phone on +255 787 648 787, +254 722 313 926 or visit our AGM website on http://www.ealawsociety.org/ealagm/ GENDER IN THE COMMON MARKET Realising a Gendered Common Market for East Africa: Gaps and the Role of the Legal Profession

By Ruth Kihiu Platform Coordinator for the East African Women in Trade Platform, East Africa Business Council

Disclaimer: The views expressed in this Article are that of the author and do not necessary reflect the views of the East African Business Council (EABC)

towards ensuring social Introduction and gender balanced economic advancement for he overall objective of many citizen of the region. Since Regional Economic Commu- gender inequality is widely nities (RECs), such as the East recognised as an impedi- African Community (EAC), ment to the promotion of which primarily aim to establish Free Trade T sustainable development, Areas (FTAs), is to enhance sustainable de- it must also negatively velopment and the standard of living for impact opportunities to lishment of the East African Community citizens. Gender is a key factor in this com- increase economic development and attain- (hereinafter referred to as the Treaty) plex relationship which comprises three ment of better living standards, both key ob- clearly provides for the enhanced role main components namely; trade, growth jects of trade agreement pursued by RECs. of women in all spheres of life as well as and development,yet there is a widespread Although trade can be a catalyst for gender gender mainstreaming in all EAC’s en- assumption that trade policies and agree- equality, the effects of trade liberalisation deavors and further provides,as one of ments are class, race and gender neutral, on women, in particular, can be varied. For its guiding principles, gender equality. which often not the position. ThisA rticle example, while in a large number of cases While the Treaty lays a good foundation will discuss some, not all, gender gaps of trade in general has improved women’s em- for gender mainstreaming in the Com- the East African Common Market Proto- powerment and livelihoods, in some other munity’s operations and pursuits, it is col. It will also advance recommendations cases the benefits gained by women from unfortunate to note that most Protocols towards realisation of a more gendered trade liberalisation have been marginal, and established under this Treaty are largely common market and the crucial role to be relatively lower than those gained by their gender blind, in that they fail to take into played by the legal profession in this regard. male counterparts. In other cases, trade lib- consideration gender dimensions and eralisation has actually exacerbated gender provide for objectives and regulations Problem analysis inequalities and women’s economic and so- that promote equal access(of both gen- The E ast African Community has a com- cial status (UNCTAD, 2009). Accordingly, if ders) to benefits and opportunities exist- bined population of 129.5 million1 people, regional trade agreements are to meet their ing in the agreements. half of which are women. Gender equity objectives, the ideals, letter and spirit of so- One such agreement is the Protocol is therefore an important consideration in cial and gender equity particularly in the de- on the Establishment of the East African the regional trade and integration process sign, negotiation process as well as the legal, Community Common Market (herein- regulatory and institutional frameworks set 1 eAC Statistical Portal, http://www.eac.int/statistics/ after referred to as the Protocol) which up to implement these agreements. th index.php?option=com_content&view=article&id=14 came into force on 20 November 2009 3&Itemid=109 Notably, The Treaty for theE stab- and which gives realisation to Article 76

The East African LAWYER Issue No.18, November 2011 15 GENDER IN THE COMMON MARKET and 104 of the Treaty. The overall objec- cedures and documentation relating (most times paying higher bribes) to tive of the Protocol is to realise acceler- to export management and cross-bor- circumvent harassment by govern- ated economic growth and development der trade, such as adherence to com- ment officials manning customs of- through the attainment of the free move- plex Rules of Origin. fices and border posts.. F urther, while ment of goods, persons, labour, the rights a good example of how these EACs has made strides in putting in of establishment and residence, the free regulations barriers restrict women’s place trade facilitation mechanisms movement of services and capital. While access to regional trade is demon- with the view of enhancing the move- the principle of gender equality is inferred strated by stipulations relating to the ment of goods, these initiatives have under Article 3- Objectives of the Com- free movement of workers. While Ar- largely targeted the formal economy mon Market of the Protocol and Article ticle 10 of the Protocol (and Annex II, thereby excluding the informal econo- 39-Harmonisation of Social Policies (there- Regulations for the Free Movement of my in which a large number of women by adopting compartmentalization of gen- Persons) provides for the free move- participate as informal cross broader der issues as opposed to mainstreaming in ment of workers, in reality there exists traders. Further lack of harmonisa- all provisions of the Protocol), the agree- challenges in accessing work permits tion of domestic taxes (such as Value ment makes an erroneous assumption (notably Kenya and Rwanda have Added Tax) and common external that opportunities and benefits will accrue abolished application fees for work tariff structures means traders cannot equally to men and women. It therefore permit) which remains a requirement move goods freely without incurring and fails to consider and provide for mea- for citizens of a Partner State who seek heft( and often unplanned for) trans- sures to address existing gender inequali- to enter or exit the territory of an- actional costs. For women traders, ties and societal barriers that hinder wom- other Partner State as a worker. This who often do not have access large en’s access to trade and economic oppor- issue was captured in the East Africa credit/financing facilities this situa- tunities. This in effect creates barriers (or Business Climate Index, 2008 com- tion discourages them for participat- creates conducive ground for barriers) to missioned by the East African Busi- ing in intra-regional export business. women accessing opportunities existing in ness Council (EABC), which found 2. Inadequate awareness creation the agreement and further results in skew- that it took a Kenyan 1-5 months to and information strategies by na- ing any measurement of intra-regional acquire a work permit to work in tional government and regional trade, in terms of a net economic benefit Uganda and Tanzania and more than platforms; Because of the often tech- and market-based criteria, as it largely ig- 2 months to acquire a work permit for nical wording, numerous regulations nores societal imbalances (including gen- a Ugandan worker in Kenya. Further, set forth in agreements (and their der inequality),subsequently causing long- over a quarter (26%) of business lead- annexures), as well as inadequate term trade inefficiencies. ers interviewed indicated that bribery (and sometimes gender insensitive) Challenges facing women’s access was a major problem in the acquisi- government information strategies, to trade opportunities in the Proto- tion of work permits for East Africans women traders( especially informal col can broadly be categorized as direct with the region while a quarter of the cross-broader traders) continue to hurdles(those that relate mainly to le- respondents claimed to have paid a face challenges in market access, gal and regulatory restrictionsas well bribe to obtain a business license. The identifying exclusions from customs as inadequate and discriminatory trade latter challenges are brought about by duties and charges, intra-regional facilitation frameworks) and indirect lack of harmonisation of laws and reg- and import management techniques hurdles(those that relate mainly to dis- ulations across EAC members states, criminatory national laws and practices (including requirements and stipu- thereby causing absence of uniformity lated time frames for the processing on inheritance and family law as well as in the application of the Protocol’s women’s effective participation in deci- of relevant documents). Without this provisions coupled with a fairly weak crucial information women traders sion making). These hurdles can further enforcement mechanism by EAC or- be unpacked as follows; often rely on government officials gans. The principle variable geom- and male counterparts to provide the 1. Existing regulatory restriction etry which allows for progression in information and interpret the various such as Non- Tariff Barriers (NTBs) cooperation among members states provisos thereby presenting opportu- and lack of harmonised (national on a variety of areas, and at different nities for misinformation, manipu- and regional) laws, regulations speeds; further complicates the situa- lation and harassment. This is usu- and tax regimes; These mainly in- tion. ally the situation for women informal clude laws, regulations, administra- While the impact of these bar- cross- broader traders who rely al- tive and technical requirements that riers are borne by most all traders, most entirely on boarder officials and impede free movement (and thereby women traders bear the burden more male counterparts for information trade) of persons, workers, goods, severely than their male counterparts about regional trade regulations and capital and services, the existence of since they generally lack control to re- laws. This results in the traders facing complicated and uncoordinated pro- sources, are more likely to pay bribes different forms of gender based vio-

16 The East African LAWYER Issue No.18, November 2011 GENDER IN THE COMMON MARKET

lence and sometimes loss of revenue 4. Patriarchal structures and dis- curtailed if national laws (especially and goods. criminatory national laws; most family, land and inheritance laws) do 3. Challenges in accessing finance EAC partner states have ratified dif- not entitle women to own and con- and credit facilities; the Protocol ferent international conventions that trol land and property, participate envisages growth economic activi- seek to promote women’s empow- freely in economic activities (most ties and intra-regional trade, but for erment, however the national laws societies expect and require women this to take place, business persons (and indeed actual practice) that to seek their husband’s approval to must be able to access the necessary domesticates these agreements are open accounts, register companies capital and financing to run their not necessary in harmony with these and businesses) and participate in ventures. The resultant effect of gen- international obligations. In regard decision making at all levels. It is also der blindness of the Protocol which to the Protocol and, the agreement interesting to note the Protocol, un- makes the assumption that men and is again passive (besides a blanket der Article 15, provides that access to women will be able to equally access provision on approximation and and use of land and promise shall be the common market and ignores the harmonisation of laws and systems governed by national laws and poli- fact that women generally lack ac- under Article 47) as to how patriar- cies of partner states. While this is cess to resources and finance due to chal structures and discriminatory not necessarily an adverse provision combination of factors such as so- national laws need to be handled to caution must be taken to ensure that cietal patriarchal structures, lack of ensure women access and participa- laws of partner states do not mar- collateral and bank loan guarantee tion to regional trade and integra- ginalise women in the ownership schemes. This in turn hinders them tion. This can be illustrated, by for and use of land( which is a major re- from establishing, expanding and example, the fact that women’s free source) as this does have an impact venturing into new lucrative busi- movement whether as workers, per- on whether they effectively partici- ness opportunities. sons or traders in goods, is often pate in regional trade.

Recommendations and Conclusion The EAC is currently considered as one of the more success- 3. B ased on the outcomes of the diagnostic and monitoring ful and fast-moving RECs in the continent and indeed globally. framework described above undertake a process of re- In this regard the legal profession has a critical role to play in viewing existing agreements, from a gender perspective, ensuring that laws, regulations and agreements concluded are existing EAC Protocols and harmonising trade and other non-discriminatory and espouse balanced development. Fur- related national laws and regulations to be in line with the ther the profession should not be limited to critiquing conclud- reviewed Protocols. ed ( and seeking amendments) but also engage in discussion and negotiations leading to the ratification of these agreements 4. C ontinued reference to and implementation of international as well as enhancing citizens’ capacities to effectively participate instruments should be pursued as domestic laws may be in- in the regional integration and trade. different to gender concerns. International instruments on Pursuant to this role, the following identifies some recom- gender not directly related to trade can play an important mendation towards strengthening the content and implemen- role in creating rights-based frameworks where women can tation process the Common Market Protocol that could be seek economic rights by way of entitlement and also ensur- pursued by the profession either by way of amendments to the ing that national governments have the appropriate protec- Protocol (as stipulated under Article 53) and/ or development tive enabling instruments in place to avoid any undermining of other Protocols (such as the East African Protocol on Gen- of or distortions to trade policies and agreements. der Equality currently been drafted) and other legally binding eac should entrench a trade facilitation framework that tar- instruments. The recommendations are; 5. gets both the formal and informal traders. Key components 1. R elevant organs of EAC, in collaboration with relevant to this framework should include simplification of import– partner states should regular gender aware diagnostics of export documents, reduction of administrative channels and the legal and regulatory frameworks (with emphasis on the documentation (preferably moving towards a single window actual practice) of the Protocol. clearance system), phasing out of the mandatory use of cus- 2. R elevant organs of the EAC should entrench a gender aware toms brokers and private companies to handle pre-shipment monitoring and evaluation mechanism to track the imple- inspections as well designing appropriate trade related ca- mentation of the Protocol. This mechanism should ensure pacity building, Business/Private Sector Development Ser- collection of reliable gender – disaggregated data to be used vices (BDS) and awareness creation strategies targeting dif- to inform review of existing agreements and formulation of ferent categories of traders as opposed to targeting them as other related Protocols. one group. end

The East African LAWYER Issue No.18, November 2011 17 Profiles Being a leading law firm…

Innovating Our clients and our people both tell us that the biggest obstacle in the way of law firms meeting their needs is a lack of flexibility. They also say that this inflexibility is self-imposed. We must put all our very considerable experience and intellect to work to find imaginative ways of meeting these needs. Innovation must become second nature in this search for competitive advantage.

Corporate responsibility We have express ethical constraints placed upon us professionally to uphold the rule of law and protect access to justice. But our belief in the broader view of justice around the world, that everyone deserves fair treatment, is integral to the firm. It is a fundamental part of the ethos of collaboration, mutual respect and decency.

Global reach and scale The global elite of law firms will come increasingly to dominate the legal work that results from the flow of capital around the world – whether that takes the form of mergers and acquisitions, bank lending, capital markets issues or the disputes to which those activities inevitably give rise.

Guy Beringer, Senior Partner, Allen and Avery.

18 The East AfricaThen LAWYEREast AfricaIssuen LAWYER No.18, NovemberIssue No.18, 2011 November 2011 18 Mkono & Co

TANZANIA Profiles of leading Law Firms in the region

Areas of Practice:

 Aviation  Banking & Finance  Capital Markets  Commercial & Corporate Law  Energy  Intellectual Property  Mergers & Acquisitions  Mining  Private Finance Initiatives  Privatisation  Public Private Partnerships  Telecommunications

Our Approach…..

 Expert advice  Excellent industry knowledge  Commercial focus  Real understanding of key political, economical, regulatory and legal issues which surround doing business in our region.

Mkono & Co Advocates is part of an expanding network of offices throughout Africa, through its association with SNR Denton, an international law firm with 60 locations in 43 countries. Mkono & Co has committed specialists and offers an unrivalled track record, dedicated resources and consistently high quality of services across a full range of transactions.

8th Floor, EXIM Tower Ghana Avenue P.O. Box 4369, Dar es Salaam Tel: + (255-22) 2194200 / 2118789-91 / 2114664 Fax: + (255-22) 2113247 / 2116635 E-Mail: [email protected] Website: www.mkono.com

The Firm is recognized by international professional directories and has received multiple awards for its legal leadership and quality of services

The East African LAWYER Issue No.18, November 2011 19 Profiles of leading Law Firms in the region TANZANIA

CRB AFRICA LEGAL (CRB) is one of the leading Tanzanian corporate law firms based in Dar es Salaam, the commercial capital of the United Republic of Tanzania. It has recently been designated as an associate office of the Norton Rose Group, a leading international legal practice with a global presence and offices throughout Europe, Asia Pacific, Canada, Africa and the Middle East.

The firm was founded in February 2009 under the name CRB Attorneys by Charles RB Rwechungura (who is the Managing Partner), but in February 2010 the name changed to CRB AFRICA LEGAL, following the signing of a collaboration agreement between CRB Attorneys and Africa Legal International (Pty) now known as Norton Rose Africa Legal, an English law division of what is now Norton Rose South Africa. Through this association with Norton Rose Africa Legal, practitioners with international experience from Norton Rose are seconded to CRB to work as part of the CRB team in the capacity of consultants. CRB will further benefit from the collaboration through technical support from the Norton Rose Group.

Over the period of over two and a half years since commencement of business, CRB has developed quickly from a virtual solo practice to a busy and motivated team of ten legal practitioners and established itself as one of the notable corporate law firms in Tanzania. At the moment the team of professionals in the firm includes:-

Partners: Charles R.B. Rwechungura Rugambwa C.J.Pesha Abdul Qaubid Ali

Consultants: Adam Lovett Nick Zervos

Associate Partners: Octavian Mushukuma

20 The East African LAWYER Issue No.18, November 2011 TANZANIA Profiles of leading Law Firms in the region

The East African LAWYER Issue No.18, November 2011 21 Profiles of leading Law Firms in the region TANZANIA

Hallmark Attorneys (former Law Offices of Chipeta & Associates) is a legal practice registered and licensed to practice law in Tanzania.

With its offices in Tanzania mainland and Zanzibar achipelago, the Firm provides legal expertise in corporate, commercial and finance industry. Managed by three Partners, it deals in major fields of law including Commercial, Communication, Mining, Maritime, Investment, Mergers & Acquisitions, Securities, and Land Law & Conveyance. The Firm also deals with Banking Law, Construction Law, Insurance Law, Personal Injury Law, Intellectual Property, Environmental & Natural Resources Law, Employment & Labor Relations Law, and civil dispute resolution (Litigation, Arbitration and Mediation).

Established in June 2000 the Firm brings together a team with specialized skills and experience in the above areas. The team-up allows the senior professionals offer extensive experience, while the team of young attorneys offers exceptional energy, industry and delivery. Vision ‘To uphold its status as a corporate legal practice dispensing services through qualified legal experts while adhering to the core values of the legal profession.’

Presence Hallmark Attorneys operates

serves its Mainland clientele through its Dar es Salaam office and a full-fledged office in the Zanzibar Island,Dar manned es Salaam by Officea resident Associate Partner.

20 Ocean Road, Tel. +255 22 2124946/8, Fax. +255 22 212 4947 P.O. Box 13811 Dar es Salaam, Email: [email protected] Zanzibar Office

296 Airport Road, Kiembe-samaki Area, P. O. Box 1814 Tel +255 24 2234588 Fax +255 24 2234589 Email: [email protected] Website: www.hallmarkattorneys.com

22 The East African LAWYER Issue No.18, November 2011 TANZANIA Profiles of leading Law Firms in the region REXATTORNEYS

Physical Address: Rex House, 145 Magore Street, Upanga, Dar es Salaam Postal Address: P.O Box 7495 Dar es salaam General e-mail: [email protected] website: www.rexattorneys.co.tz

Tel: +255-22-2114899/2114291/2137191 Direct to some of the Partners: +255-22-2134628/2134627/2134625/2134626

Lawyers 9 Partners including International consultant and 3 Associate Partners, and 6 lawyers Most of the lawyers have masters with at least one degree obtained abroad mostly from the UK Common to all Partners All Partners are corporate consultants and advocates and associates and can handle any corporate and litigation, however, our practice areas are organized around specializations: Contact persons listed below: Dr. Alex Thomas Nguluma Managing Partner and Head Tax and Corporate. Oil & [email protected] Gas Dr. Eve HawaSinare Advocate/consultant- Business Development-& [email protected] Partner -Banking , project Finance, financial services, capital markets and Employment Mr. LuganoMwandambo Head Commercial Litigation and Arbitration [email protected]

Mr. George MpeliKilindu Head Banking, Project Finance and Financial Services, Capital Markets Tabitha Maro Head, Mining, Oil & Gas [email protected] Common Commercial Arbitration is done by most partners.

PRACTICE AREAS 1 General Corporate law including corporate restructuring, acquisitions, mergers, competition, company/trust formation, services which can be offered by any each department 2 Tax and Tax Litigation 3 Banking, Project Finance, Financial Services especially syndications and related services 4 Mining 5 Energy-Oil & Gas 6 Capital Markets transactions 7 Employment and Immigration 8 Legal and Legislative Review 9 Commercial litigation and arbitration 10 NGOs

The East African LAWYER Issue No.18, November 2011 23 Profiles of leading Law Firms in the region TANZANIA

The firm was founded in year 1991 by its current Chairman Dr R. W. Tenga who is an Advocate, reasercher and academic, leading a team of partners, advocates and consultants with diverse expartise such as Land Law and Property Conveyancing, Corporate matters, mining, banking and financial related matters, litigation, arbitration, etc.

The firm vision is to provide high quality and innovative legal proffessional services of the highest quality focusing on satisfaction of needs and requirements of our clients’ base by providing customized legal solutions.

All these are to be achieved through the following strategic principles: • Provision of premium and composite legal services through mastery of local conditions; • Consistent quality and prompt service to clients; • Strict adherence to professional code of conduct (Ethics); • Ensuring fundamental relationship of trust and confidentiality, which distinguishes the provision of legal services from that of other consultancy services. • Engagement of qualified staff of highest professional standing. • Networking with other law firms and non-legal services providers in assuring composite services to clients.

CRDB Building, 6th Floor (Adjacent to Benjamin Mkapa NSSF Building) Azikiwe Street P.O Box 11133, Dar es Salaam – Tanzania Tel: +255 22 2116367. Fax: +255 22 2111484 Cell: +255 752 116367 Email: [email protected] Web: http://www.lawassociates.co.tz

24 The East African LAWYER Issue No.18, November 2011 KENYA RACHIER AND AMOLLO ADVOCATES NAME OF FIRM (CONSULTANT) Rachier & Amollo Advocates FOUNDED 1998 NO. OF PARTNERS 3 PERSONELL STRUCTURE Partners A.D.O Rachier LL.B, LL.M P. Otiende Amollo EBS, LL.B, LL.M J. Okome Arwa LL.B., LL.M, Phd. Associates – 5 Legal Assistants – 8 Administrative Assistants – 5 Clerical staff - 10 DEPARTMENTAL STRUCTURE Litigation Department Energy sector Litigation, Liquidation, Bankruptcy & Winding up proceedings, Public Procurement, Arbitration, Probate & Administration, Matrimonial Causes. Conveyancing Department Transfer of Properties: Leases, Mortgages, Charges, Shares, Motor vehicles, General Sale Agreements, Employee Share Option Plans, Trusts, Pension Schemes etc. Commercial Transactions & Consultancies Banking, Insurance & Financial Services Mergers and Acquisitions Joint Venture Agreements, Partnerships, Agency AgreementsInitial Public Offers Consultancy – Legal and Financial advisory services Consultancy – Legislative Framework review, development, formulation, drafting etcetera (regulations, rules, guidelines, policies, Statutes)

Office: MM Chambers, K-Rep Centre 4th Floor Wood Avenue, Kilimani P.O Box 61323-00200 Nairobi, Kenya Phone +254-20 – 2397401/ +254 - 20 – 2397401/+254 - 20 – 2397401 Mobile: +244-722 85 10 18|737 85 10 18 Fax: +254 - 20 - 2 2397404 Email: [email protected]| URL: www.mohammedmuigai.com Our Profile “Willing to challenge traditional ways of solving problems”

Chambers and Partners, 2011 Founded in 1988, Mohammed Muigai is a leading law firm in Kenya. Mohammed Muigai is organised into four departments: the Liti- Recognised for its specialist regulatory advisory services, high level gation and Arbitration Department is involved in day to day litigation dispute resolution (through both litigation and alternative dispute before the Kenya Courts, tribunals both domestic and international resolution mechanisms) and handling complex and big value prop- and represents clients in arbitrations and before regulators; the Real erty transactions, Mohammed Muigai has a keen understanding of Estate Transactions Department deals with Land and Conveyancing the legal, commercial and regulatory environment in Kenya. transactions including: transfers, conveyances, leases, sale agreements Today we have six partners, three associates and a dedicated and subdivisions. The department also advises on change of user team of legal assistants and support staff offering expert legal advice and negotiations of securities such as charges and mortgages; the to businesses, corporate entities, banks, insurance and financial insti- Legal Advisory and Consultancy Group focuses on providing con- tutions, governments and private clients. Our members have varied sultancy services to government, private and public institutions on educational and professional backgrounds and unique exposure to statutory and regulatory reform; and the Commercial Transactions diverse areas such as banking, finance, insurance, energy, telecom- Department provides a wide range of Transaction advisory services munications and transportation. In order to increase our respon- to clients including undertaking due diligence exercises, negotiating siveness to the dynamic legal needs in the region, we place great restructurings, advising on public listing, rights issues, asset sales and premium on continual learning to complement the advanced and financing through single lender or syndicate loans. specialized degrees that partners and associates hold. Note: Prof. Githu Muigai, Senior Partner of the firm is currently on official leave of absence from the firm to serve as the Attorney General of the Republic of Kenya.

The East African LAWYER Issue No.18, November 2011 25 KENYA

MUTHOGA GATURU & COMPANY ADVOCATES [MG&Co.] Providing quality legal services since 1975

The Law Firm The Principal Areas of Practice MG&Co. was established in June 1975 by the two founding MG&Co. specializes in the following main areas of practice:- partners, Judge Lee G. Muthoga, S.C., and Mr. Evans T. Gaturu, ✔ Corporate and Commercial Law to respond to the growing need from clients for quality legal ✔ Mergers and Acquisitions services at reasonable fees. Over these years, through ethical ✔ Banking and Finance Practice practice based on integrity, professionalism and high standards of ✔ Intellectual Property (IP) Practice quality service delivery, MG&Co. has established itself as a premier ✔ Real Property Law and Conveyancing Practice corporate commercial law firm both at the national level and in ✔ Commercial Conveyancing Practice the region, without losing the vision of its founding partners. ✔ Estate Planning and Administration Practice The business environment within all the five States ✔ Labour Law Practice comprising the East Africa Community (EAC) has in recent years ✔ Civil Litigation Practice improved and made tremendous growth. The EAC has become ✔ Arbitration and Alternative Dispute Resolution (ADR) a new frontier for foreign investments from all over the world. Practice Consequently, the need for high quality legal advisory services at local and cross-border levels has increased exponentially. The Place of Business and Practice MG&Co. has highly qualified legal staff with first-class training MG&Co. has its principal place of business and practice in skills and competencies, and significant practical experiences Nairobi – Kenya, and a branch office at Nyeri – Kenya. We have in its key areas of practice. We pride ourselves at providing high established a network of associating firms within the EAC and quality and innovative technical legal advice that is relevant to COMESA regions to be able to serve our international clients. Our our clients’ needs and minimises their legal and regulatory risks, contacts are: within ethical parameters and within agreed timelines. MG&Co. currently has seven partners and a youthful but Principal Office: Branch Office: experienced team of bright and very talented associates and Bruce House, 7th Floor Barclays Bank Building legal assistants. This legal team is supported by a well qualified Standard Street Off Kenyatta Road and multi-disciplinary management and administration team P. O. Box 47614 – 00100 P. O. Box 1294 – 10100 to render support services. MG&Co. utilizes and continuously Nairobi – Kenya Nyeri – Kenya updates its state of the art information and communications Tel.: +(254) (0)20 2230182/3, 317459 Tel.: +(254) (0)61 2030607, 2030129 +(254) (0)722 240 524, 733 986 085 +(254) (0)722 569 609 technology (ICT) customized to suit the needs of legal practice Facsimile: +(254) 20 2226928 Facsimile: +(254) (0) 61 2030796 and business, to ensure that our standards of customer service E-mail: [email protected] E-mail: [email protected] delivery standards are internationally bench-marked at all times. Website: www.mgadvocates.com Website: www.mgadvocates.com

Arbor House, Arboretum Drive NJOROGE REGERU & COMPANY P O Box 46971-00100, NAIROBI-KENYA Tel:+254 20 2718482/3/4, 3586592/2319224 A DVOCATES, COMMISSIONERS FOR OATHS AND NOTARIES PUBLIC Fax:+254 20 2718485 Email: [email protected] Website: www.njorogeregeru.com A. THE FIRM: Njoroge Regeru & Company, Advocates is a key player in the legal scene 3. Conveyancing and Securities: The whole range of property transactions in- regionally, rendering services across a wide range of practice areas. The Firm’s capa- cluding leases, licences and disposals, creating and perfection of securities over bilities and resources are dedicated to an efficient and competent delivery of legal movable and immovable properties though Charges, Debentures, Mortgages, services to a broad cross-section of clientele ranging from individual persons and and the like. small businesses to large multinational corporations, governmental institutions and 4. Commercial Litigation: In all levels of the Court System and covering a diverse statutory corporations, international organizations, local and international banks range of subjects including commercial disputes, enforcements of contracts, re- and development institutions. alization of securities, bankruptcies, receiverships, liquidations, debt collection and all sorts of civil claims. B. THE FIRM’S VISION is to be a competent and dependable provider of world-class 5. Arbitration and ADR: The Firm has wide experience on a broad range of com- legal services to meet the diverse needs of an ever-growing and discerning clientele mercial and non-commercial disputes, dealing regularly in this regard with in- in Kenya, the Region and globally. ternational bodies and tribunals. C. MAIN AREAS OF PRACTICE 6. Intellectual Property: Including trademarks, service marks, patents, assign- 1. Corporate and Commercial: This field includes incorporation of diverse busi- ments and copyrights, etc. ness entities, recapitalization, structuring and restructuring, joint ventures, 7. Due diligence, Mergers & Acquisitions: The firm provides assistance in these negotiating and preparing of commercial documents, realizations and allied areas so as to safeguard effectively the business interests of its local and interna- services. tional clientele. 2. Banking and Finance/Capital Markets: Representation of a wide range 8. General Practice: The firm covers virtually all fields of legal practice including of banks and financial institutions in their day to day businesses, structuring advice, opinions, general litigation including debt collection, labour disputes, credit facilities, risks profiling and documentation review, advising on licensing civil claims, constitutional and administrative law, telecommunications and No- compliance and regulatory requirements, securitization, debt recoveries, money tary Public services. markets, and related matters. The Firm enjoys international recognition through, inter alia, listing in the prestigious Chambers Global International Directory of Leading Business Lawyers and is a regular contributor to such international publications as Acquisition International Magazine and International Law Office online magazine.

26 The East African LAWYER Issue No.18, November 2011 RWANDA Profiles of leading Law Firms in the region

Fountain Law

Fountain Law Chambers (FLC) is a dynamic and modern Rwandan law Firm of legal consultants and advocates. The foundation of our practice is Employment/Labor law, Business and corporate law, Human rights, Securities/Regulatory Matters, Intellectual Property, Mergers and Acquisitions, Constitutional, Environment and Land Law among others. Besides, the Firm ensures first class and high quality legal services to corporate entities, Government agencies, INGOs, Private Sector Organisation and individuals in a wide range of disciplines. Whether it is getting the deal done or simply gaining advice, we are committed to a level of service allied to a total-solutions approach that completely meet the clients’ requirements, viewing ourselves as a vital addition to the business of every one of our clients. We are always there to respond promptly to our clients’ needs and guide them on the way forward. To us, everything for our client matters! At FLC, we are honest and trustworthy in our dealings with each other (as partners), with our clients and with all others. We act with integrity at all times. We show respect towards each other and with anyone whether seeking services of our firm or simply our guest. We are considerate and appreciate the contributions of all members of our team, and show it. We recognize that our future depends on the encouragement, development and recognition of our people. Teamwork is of fundamental importance to us and we respect each member of the team as an individual. Our diverse individuals combine to create an unbeatable team of lawyers and staff of the firm. As a Rwandan law firm in this globalised world, we notice that clients require more services from their lawyers than ever. Clients not only expect their lawyers to provide impeccable advice and representation in courts of law, but also lawyers they can trust and also expect to exhibit independence, integrity and fidelity beyond question. We base our practice on concrete assumption on such expectations and it is our goal to meet and even exceed them. FLC is one of Rwanda’s leading law Firms and prides itself in having competent advocates and experienced associates providing world-class legal advisory and representation services. FLC is at your service should your require our legal advice or representation in Rwanda.

Umutekano Zone II 0002, New Cadillac – Kimihurura Stone Road, P.O. Box 6368 Kigali-Rwanda, Tel: +252-580836 E-mail: [email protected] , www.fountainlawchambers.com

RUKANGIRA LAW CHAMBERS (RLC)

Background: Rukangira Law Chambers was established in 1995 and is a dynamic and modern reputable Law firm in Rwanda. Location: Rukangira Law chambers are located in the city Center. Reach us at Commercial Avenue, Bank of Kigali building, and second floor opposite Caritas Library, P.O BOX 7097 KIGALI –RWANDA , Office (250)0785748274, Mob. (250) 0788300280 Email: [email protected], Web: www.rukangiralawc.com Our team: Our Lawyers come from different domains of law with perspectives and experiences united by a commitment to providing our clients with quality legal services. RUKANGIRA Emmanuel, Managing and founder Partner;. Contact; Tel; 0788300280; Email; [email protected]; rukangira@ rukangirarlc.com;. WIBABARA Jacqueline An Advocate and in addition, a lecturer at the Faculty of Law, Kigali Independent University; RUTEMBESA Phocas: Contacts:. Tel; 0788558080; Email; [email protected]; rutembesa@rukangirarlc. com. BUZAYIRE Angèle: Contacts: Tel; 0788839462; Email; [email protected]; MWAMIKAZI Alice: Contacts: Tel; 0788602474; Email; [email protected]; [email protected];. NIYONGIRA Ghislaine: Tel; 0788463878; Email; [email protected]; [email protected] PRACTICE AREAS: Commercial Law, Taxation Law, Banking and finance, Social Law , Private Law: Administrative Law: Criminal Law: Current Specific Areas : Our office offers modern and new business orientations to investors in Rwanda including but not limited to : Intellectual property registration and protection, Trademarks registration and protection, Patent rights registration and protection, Industrial design and model, Title Deeds services, Mortgages registration services, Company registration in general, Registration of foreign companies services, Re-registration of companies in compliance with new company Act in Rwanda. Partners: we have established working relationship with law firms in countries such as Burundi, Uganda, Democratic Republic of Congo, Tanzania, Kenya, Canada and Belgium.

The East African LAWYER Issue No.18, November 2011 27 Profiles of leading Law Firms in the region RWANDA

At Lex Chambers we take you to your legal heights

Corporate Lawyers Plot No. 30, Rukiri 1, Kisementi-Sonatubes Stony road, Remera P. O. Box 6265 Kigali, Rwanda / Tel: +250 788 300 983/255111061 Email: [email protected]/[email protected] www. isaacchambers.net

East Africa Law Society

ast Africa Law Society (EALS) is the premier regional Bar Association formed in 1995 by a visionary group of lawyers and the leadership of the national Bar associations in the East African Community (EAC) region.E It is a dual membership organization, bringing together over seven thousand individual lawyer-members as well as the six national Bar associations: Burundi Bar Association, Kigali Bar Association, Law Society of Kenya, Tanganyika Law Society, Uganda Law Society and Zanzibar Law Society.

EALS is one of the largest organized Professional/Civil Society membership organizations with a strong interest in the professional development and Formal EAC Observer Status and unparalleled competence on EAC law, practice of law as well as constitutionalism, democracy and good governance, including litigation at the East African Court of Justice and formulating the just rule of law, and the advancement, promotion and protection of draft legislation for the consideration of the East African Legislative human rights of all people in East Africa and beyond. Assembly. It is uniquely positioned to promote cross border integration for the A well established and credible network of national level partners, people of East Africa and enjoys formal Observer Status at the EAC. that ensures the filtration and ownership of all EALS interventions by national level actors. Key Milestoness A robust and strong professional resource base from amongst its On the ground credibility within the 5 EAC partner states: with lawyers, diverse membership, guaranteed to contextually enrich the quality of governments, civil society and ordinary citizens; that assures the EALS the society’s programs and interventions. audience from all key stakeholders at both regional and national level. Strong continental linkages and networks with various institutions Robust financial support base from its ever growing annual membership including the Coalition for an Effective African Court on Human and subscription,28 The that E guaranteeast A thefr continuityican LAWYER of any project interventionIssue No.18,Peoples’ November Rights(CEAC), 2011 SADC Lawyers’ Association and the West African upon cessation of third party technical and financial support. Bar Association. UGANDA Profiles of leading Law Firms in the region Kampala Associated Advocates Plot 41 Nakasero Road P.O Box 9566 Kampala, Uganda. www.kaa.co.ug

They are assisted by Paul THE FIRM Kuteesa, our Associate Partner and Kampala Associated Advocates (“KAA”) is one of the five Associates, Annet N Kemaali, leading firms in Uganda and is a full-service law firm Eunice Kabibi, Jet Tumwebaze, offering services ranging from litigation to various Afrah Mpungu and Ernest aspects of corporate practice. We have over 35 staff Rukundo. with a total of 20 lawyers hence making us one of The team also works under the largest legal practices in Kampala with unrivalled the guidance of Justice Ntabgoba expertise in Litigation, corporate and banking and Justice Mulenga, who are our financial services, corporate restructuring, revenue full time consultants. and taxation, employment and arbitration. We are in global partnership with SNR Denton, The Corporate and Finance a leading firm in the United Kingdom, which makes Credit Management Practice us part of a network of offices and associates in Our credit management practice is headed by The department is headed by David Mpanga, Europe, Central Asia, Middle East and Africa. The SNR Dr. Charles Kalumiya and assisted by Jet John who was previously a legal services manager for Denton network assists KAA to combine regional and Tumwebaze and Eunice Kabibi. We support PriceWaterhouse Coopers, a leading audit firm. He is international best practice with sound legal solutions, businesses in the management and recovery of their assisted by one of our Associate Partners Aisha Naiga, ensuring a cost effective and coordinated strategy in receivables portfolio. and a team of three other Associates, Ernest Rukundo, matters involving multiple jurisdictions. Isaac N. Kyagaba and Claire Amanya Kakeeto. Our African Association for instance comprises Business Development and Immigration Practice law firms fromN igeria, Sudan, Kenya, Rwanda, Our Business Development & Immigration practice Banking practice Burundi, Tanzania, South Africa, Ghana, Mauritius, is headed by Elly Karuhanga assisted by one of our Our banking practice is headed by Sam Mayanja, Botswana and Zambia. Associate, Ernest Rukundo. We assist foreigners who has had several years of banking experience, Our clients are therefore guaranteed with top looking to work, establish businesses, or live in supported by, Dennis Ottatina, Benjamin Beyanga notch legal representation as they conduct and Uganda to apply and process immigration permits, and Afrah Mpungu an associate. arrange their business affairs in today’s contemporary that is, work permits, entry permits, dependants’ The practice supports some of the largest world. passes and other visa categories. commercial banks in Ugandan economy including Barclays Bank, Stanbic Bank, DFCU bank, Citibank, OUR VALUE PROPOSITION OUR PRACTICE Centenary Rural Development Bank, East African Development Bank and Standard Chartered Bank. • By KAA working for you, our commitment is that Litigation Practice every customer is important irrespective of size Our Litigation department is headed by, Peter Kabatsi Revenue and Taxation and value of subject matter. The customer always and Joseph Matsiko both excellent and renowned Our taxation practice is headed by Oscar Kambona a gets full benefit and support of the firm as an legal practitioners. renowned tax practitioner and a lecturer at the Law entity starting from the most senior partner to Peter was a long time serving Director of Public Development Center, assisted by Gad Wilson. the junior lawyers. Prosecutions and later Solicitor General for the We pride in ensuring that tax disputes are • Our services and work for the client is primarily government of Uganda. resolved in the quickest possible time allowing and solely solution driven. We propose to work Joseph was the head of Civil Litigation in the businesses and taxpayers to concentrate and focus on with you and generate sound legal solutions that Attorney General’s chamber for a number of years. other aspects of their businesses. are practicable at the cheapest possible cost.

Katende, Ssempebwa & Company Advocates

Founded in 1969, Katende, Ssempebwa & Company Advo- Consultants, Commissioners for Oath, No- cates is Uganda’s largest and leading legal Firm with over tary Publics, Trademark and Patent Agents, sixty staff members. In addition to its offices in Kampala, Receivers, Liquidators and Company Secre- the Firm has affiliated offices in all the leading capitals in taries. the world as the Ugandan member of Lex Africa - the largest network of independent legal firms on the Africa continent The Firm has some of the most talented, highly qualified and World Services Group - a network of leading profes- and experienced advocates in Uganda many of whom have sional in over 130 countries. received advanced legal training in the world’s leading law schools and some are licensed to practice in Uganda, New The Firm has over 40 years experience in providing world- York, and the United Kingdom and it has been the premier class legal advisory services and has been internationally breeding ground of many of the leading legal practitioners recognized year-in year-out as the number one law firm in Uganda. in Uganda by the Chambers and Partners Global Guide to the World’s Leading Lawyers, IFLR 1000: The Guide to the This Firm has the size, strength, and resources to provide World’s Leading Financial Law Firms and Practical Law Com- quality results and has been a leading advisor on many land- panion: Which Lawyer? mark transactions that raise new and complex questions of law and has consistently been the choice for clients with We are a full service law firm providing legal services as a groundbreaking and unusually challenging transactions in firm of Advocates, Solicitors, Legal, Investment and Tax the region.

CONTACT DETAILS: M/s Katende, Ssempebwa & Company, Advocates, Attorneys-at Law, Solicitors & Legal Consultants. Physical: Radiant House, Plot 20 Kampala Road Postal: P.O. Box 2344, Kampala, Uganda, East Africa Tel: (+256) (414) 233770 / 233908 Fax: (+256) (414) 257544 E-mail: [email protected] Website: www.kats.co.ug

The East African LAWYER Issue No.18, November 2011 29 Profiles of leading Law Firms in the region UGANDA NEW

Shonubi, Musoke and Co. Advocates was registered as a law firm in 1987 Shonubi, Musoke and Co. Advocates

The firm has steadily grown into one of the largest firms and established itself as a leading law firm in Uganda and is proud to be one of the few firms in the country that own their multi storey business premises.

In a jurisdiction where few firms have managed to specialise, the firm has succeeded in building a specialised practice with core capabilities in all fields of corporate and commercial law ranging from non-contentious transactional work to highly contentious complex litigation. The firm’s endeavours have enabled them to build a solid reputation and this fact is clients. exemplified by the lengthy and ever increasing portfolio of impressive international and local

The firm is the Uganda member of the Africa Legal-International Legal Services Alliance an extensive network of the continent’s leading firms in Angola, Democratic Republic of Congo, Ghana, Kenya, Mozambique, Namibia, Nigeria, Tanzania, and Zimbabwe. The key features of the Africa Legal Alliance operated out of Norton Rose South Africa/ Norton Rose Africa legal include the sharing of know-how, expertise and market information and more importantly the ability to carry out cross border legal work with proven and reliable foreign counsel.

The firm has at various times been rated as a leading law firm in Uganda by Chambers and Partners and by the IFLR 1000 directory of leading financial law firms, by PLC Which Lawyer and was awarded the Law Firm of the year 2010 and 2011 awards in Banking and Finance, Mergers and Acquisitions and Energy Law by Corporate International and has since been awarded Law firm of the year 2011 by the same entity.

Major areas of practice include Corporate/ M&A ,Banking & Finance, Energy, Mining, Oil and Gas, Tax & Securities, Telecommunications ,Intellectual Property, General & Conveyancing and Real Property, Transport, Privatisation & Deregulation, Litigation & Arbitration. OFFICES:

Head Office:

Uganda SM Chambers, Plot 14 Hannington Road, PO Box 3213, Kampala Tel: +256 414 233204/ 230 384 Fax: +256 41 230 388 Branches: Email:Burundi ashonubi@shonubimusok e.co.ug Rwanda

Immeuble BBIN Building Great Lakes Legal Africa Boulevard de l’Uprona P.o. Box 2191 Kigali, Rwanda PO Box 3000 Tel: +256 776 694005 Bujumbura Burundi Email: [email protected] Tel: +257 78 802 990 Fax +257 22 27 63 66 Email: [email protected]

30 The East African LAWYER Issue No.18, November 2011 NEW LAW DIGEST

Available to members at a substantially subsidized fee of just US$ 15 during the EALS Annual Conference in Arusha. November 25th - 26th, 2011.

For a copy please contact: East Africa Law Society Tel: (+255 27) 2503135, Arusha, Tanzania Tel/Fax: (+255 27) 2508707, Office Cell (+255 786) 821010 Email: [email protected], Web: www.ealawsociety.org The East African LAWYER Issue No.18, November 2011 31 Alternatively, please contact your respective National Law Society RWANDA Fully Washed UGANDA Washed Arabica & “the Pearl” Washed Robusta BURUNDI Fully Washed and Premium Washed

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